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Florida “Warning Shot” Bill Passes Senate, Heads to Governor’s Desk

Florida “Warning Shot” Bill Passes Senate, Heads to Governor’s Desk

SB-448 enhances Florida self-defense law by treating threat and use of defensive force the same, allowing expunction of criminal history

Today the Florida Senate voted overwhelmingly (32 to 7) to pass SB-448, the state’s so-called “warning shot” bill. The same bill was passed overwhelmingly (93 to 24) by the Florida House, as HB-89, just two weeks. As a result, the bill now proceeds to the desk of Governor Rick Scott, who seems certain to sign it into law.

Much of the discussion of SB-448 is replete with terms like “warning shot” and “stand-your-ground.” In reality, however, the law does not even mention the term “warning shot,” nor does it make any substantive changes whatever to Florida’s stand-your-ground law.

So, what exactly does SB-448 do (note: the full text of the proposed bill is embedded at the bottom of this post, but all hyperlinks are to the statutes as they currently exist prior to modification by SB-448)? Here’s a bulleted list, with details below. In summary SB-448 provides:

  • No statutory authorization for firing “warning shots”—indeed, the statutory language would deny justification to any “warning shot” that “poses a threat to public safety,” which would seem to apply to all but the rarest circumstances. [CORRECTION (6/26/14): The “poses a threat to public safety” language references possible exemption from Florida’s “10-20-Life” law, not warning shots. –AFB]
  • No substantive change to stand-your-ground.
  • Where the use of force would have been lawful in defense of a person, the mere threat is also lawful in defense of a person.
  • Where the use of force would have been lawful in defense of a home, business, or occupied vehicle, the mere threat of force is also lawful in defense of a home, business, or occupied vehicle.
  • Where the use of force would have been lawful in defense of personal property or to prevent a forcible felony, the mere threat of force is also lawful in defense of personal property or to prevent a forcible felony.
  • Where immunity would attach to a use of force, immunity will similarly attach to a mere threat of force.
  • Allows for expunction of criminal history associated with a lawful act of self-defense.

The Legislative Statement: The Problem to be Addressed

The bill is prefaced with a legislative statement that notes that people have been criminally prosecuted and sentenced to mandatory minimum sentences under Florida’s “10-20-Life” statute for having threatened the use of force in circumstances where an actual use of force would have been justifiable under Florida’s self-defense laws (chapter 776).

In essence, the legislature is identifying as a problem the fact that prosecutors are sending defendants to prison for long periods of time for having threatened force, whereas if those same defendants had actually used force their actions would have been lawfully justified.

This would seem to create an imprudent incentive where one is encouraged to use deadly force when the mere threat of deadly force might otherwise have been sufficient to secure safety.

The House version of this bill, HB-89, contains a legislative statement that provides insight to the perceived problems this bill is intended to address. The Senate bill, SB-448, lacks this legislative statement, but the language is otherwise identical between the two, so the statement remains useful in terms of gaining insight to what the legislature intends:

Provide criminal and civil immunity to those who threaten to use force if the threat was made in a manner and under circumstances that would have been immune under chapter 776.032, the state’s self-defense immunity statute.

In other words, if you would have been entitled to self-defense immunity for having actually shot someone in lawful self-defense, you are similarly entitled to self-defense immunity under those same circumstances for merely threatening to shoot someone in lawful self-defense.

Clarify that those who threaten to use force may claim self-defense if the threat was made in a manner and under circumstances that would have been justifiable under [Florida’s existing self-defense law], had force actually been used.

If you would have been lawfully justified in actually shooting an aggressor, under those same circumstances you would be lawfully justified in merely threatening to shoot someone.

Ensure that those who threaten to use force in a manner and under circumstances that are justifiable under [Florida’s existing self-defense law] are not sentenced to a mandatory minimum term of imprisonment pursuant to [Florida’s “10-20-Life” statute].

If someone acted in self-defense they ought not to be subject to “10-20-Life.” Of course, if someone acted in lawful self-defense they ought not to be subject to any criminal sanction, whatever.

The real point of clarification that needs to be made to avoid travesties of justice are really addressed in the two points above—that the mere threat of force should be treated identically under the law of justification as is the actual use of force. If one is done in lawful self-defense, the other should also be deemed lawful self-defense. If one is not done in lawful self-defense, the other should also be deemed not lawful.

Encourage those who have been sentenced to a mandatory minimum term of imprisonment pursuant to [“10-20-Life”] for threatening to use force in a manner and under circumstances that are justifiable under [Florida law] to apply for executive clemency.

This final paragraph of the legislative statement would seem to have two possible consequences.

First, those who were mistakenly convicted because their threat of force was deemed outside the boundaries of Florida’s self-defense law under circumstances where a use of force would have been justified. These individuals should simply have their convictions pardoned, or at worst vacated with a re-trial in which the proper legal standard is applied.

Second, those whose conduct was such that under the circumstances their actual use of force would NOT have been justified as self-defense, and therefore their threat of force could not be justified as self-defense. Under current Florida law, if their conduct involved the use of a gun they are subject to “10-20-Life”.

In most of these cases, of course, we’re dealing simply with someone engaged in criminal activity whose conduct falls far outside the boundaries of justification. In a minority of cases, however, we are dealing with defendants who legitimately believed they were acting in defense of themselves or another innocent person, but who inadvertently violated one or more of the five elements of self-defense law.

For this latter group, because their conduct was not actual lawful self-defense, some criminal sanction seems warranted. Perhaps, however, they should not be subject to Florida’s very severe “10-20-Life” statute, under which the firing of a harmless warning shot in an effort to deter actual harm to persons must be punished with a 20-year mandatory minimum sentence.

With that intent set out by the legislative statement, how does SB-448 go about achieving those objectives in a nuts-and-bolts way?

Modifying 775.087: “10-20-Life”

First, SB-448 modifies Florida’s 775.087, “10-20-Life” statute to exclude cases of aggravated assault where a court makes a finding that:

  1. The defendant had a good faith (even if erroneous) belief that they were acting in lawful self-defense;
  2. The aggravated assault was not committed in the course of another crime;
  3. The defendant did not pose a threat to public safety; and
  4. The totality of the circumstances involved in the offense do not justify the imposition of a “10-20-Life” sentence.

Make particular note of condition (3)—this would explicitly exclude “warning shots” that represented a threat to public safety. Contrary to those who claim that SB-448 advocates or authorizes “warning shots,” this bill actually makes clear that such “warning shots” would be acceptable only under circumstances where discharging a round would “not pose a threat to public safety”.

Simply firing into the air in an urban or suburban setting, for example, clearly presents a threat to public safety, as would most “warning shot” scenarios that come to mind. Furthermore, I’ve had personal communications with people serving long prison sentences who thought firing into the ground was a “safe” thing to do—only to discover that their bullet skipping off the ground retained more than enough energy to kill a person.

Modifying 776.012: Use of force in defense of person.

SB-448 then goes on to modify one of Florida’s core self-defense statutes, 776.012: Use of force in defense of person. This statute covers the use of both non-deadly and deadly force in defense of self or others.

Here SB-448 essentially simply incorporates the phrase “or threatened use of force” wherever the statute currently states “use of force.”
Note in particular that the modified version of 776.012 fully retains stand-your-ground—indeed, effectively expands stand-your-ground to include the lawful threat of force, in addition to the lawful use of force.

“A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.”

(Emphasis added.)

Modifying 776.013: Home protection; use of deadly force; presumption of fear of death or great bodily harm.

Next, SB-448 modifies Florida’s defense of home statute, 776.013, Home protection; use of deadly force; presumption of fear of death or great bodily harmwhich creates a “presumption of reasonable fear” in the context of acts of self-defense in your home or occupied vehicle (e.g., carjacking).

Again, SB-448 modifies this statute primarily by incorporating the phrase “or threatened use of force” whether the statue currently states “use of force”.

There is one change to SB-448 that may well be distorted by the anti-self-defense crowd as a “win” in their fight against “stand-your-ground.” Section (3) of 776.013 is where “stand-your-ground” is addressed in the context of home protection.

The current form of the statute provides that a person “who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground.”

The proposed change would delete the phrase “who is attacked in any other place where he or she has a right to be,” and replace it with “who is attacked in his or her dwelling, residence, or vehicle.”

Is this a change to Florida’s “stand-your-ground” law such that “stand-your-ground” is now limited to your home, business, and occupied vehicle?

Absolutely not. Keep in mind that 776.013 only covers self-defense within the home, business or vehicle in the first place. Within that context, you can still stand your ground.

If you are outside of your home, business, or occupied vehicle, then 776.013 is not relevant, and you are relying upon 776.012: Defense of persons, to justify your use of force. There, “stand-your-ground” continues to apply everywhere you have a right to be.

So, no substantive change to “stand-your-ground” at all.

Modifying 776.031: Use or threatened use of force in defense of property.

In the context of 776.031: Use or threatened use of force in defense of property,  SB-448 might seem as if it were actually making a substantive change to the currently existing statute, the present title of which refers to the use of force in defense of other persons, not of property.

The actual text of the current statute, however, is primarily about the protection of personal property—for our purposes, property other than your home, business, or occupied vehicle as is covered by 776.013, above. For the protection of personal property only non-deadly force may be used. Deadly force can be used in such cases only when necessary to defend against an imminent forcible felony, which felony necessary implies a threat to an innocent person.

Again, SB-448 essentially changes the statutory language simply to include “threat of force” along with “use of force.”

Also again, “stand-your-ground” is retained, and prominently so:

A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground . . .

(Emphasis added.)

Modifying 776.032: Immunity from criminal prosecution and civil action for justifiable use of force.

776.032: Immunity from criminal prosecution and civil action for justifiable use of force is Florida’s self-defense immunity statute. Here SB-448 simply incorporates “threatened use of force” alongside “use of force.” Unlike as reported by some sources, SB-448 does not in any way change the law on how and when police may investigate in the aftermath of a self-defense shooting. They may (not must) still investigate using all standard procedures, and they are prohibited from arresting the defender unless there exists probably cause that their use of force was unlawful.

In fact, probably cause is a very low threshold, and even under existing law you will recall that George Zimmerman was handcuffed and detained by the Sanford Police Department from the moment they arrived on scene until the next day (during which time he was fully cooperative with police questioning).

Modifying 776.041: Use of force by aggressor.

776.041: Use of force by aggressor is the Florida statute that makes clear that self-defense is not available to a person who was an aggressor, but which also provides the means by which an initial aggressor can “regain their innocence,” and their right to justify their use of force as self-defense.

Here, SB-448 simply incorporates “threat of force” alongside “use of force.”

Modifying 776.051 and 776.06

These sections have to do with resisting arrest and use of deadly force by law enforcement, and again SB-448 simply incorporates “threat of force” alongside “use of force.”

Creating 776.09: Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.

This is an entirely new Florida statute, and an interesting one at that.

It provides that where a state attorney dismisses an official charge of wrongful use of force, or decides to not seek such a charge on the basis that the use of force was lawful self-defense, that they are to document that decision in writing and retain a copy of that writing in their official records.

It further provides that were similar action or decision is made by a court, that the court document that decision in an order or memorandum, and also retain a copy of that in their official records.

Under either of those conditions, the person who used force may apply for a certificate of eligibility to have their record expunged of the associated criminal history record.

Really, all this really provides is that if it turns out you did nothing wrong in using force against another, there’s no reason why you should have to live with the existence of an arrest record, fingerprints, mug shot photos, and all the other detritus of having been ensnared in the criminal justice system through no fault of your own. This seems imminently reasonable.

Modifying 943.0585: Court-ordered expunction of criminal history records.

This statute provides the nuts-and-bolts process for how one goes about having a criminal record expunged. It is modified by SB-448 to incorporate the allowance for expunction of a criminal record in the context of an act of lawful self-defense, as described above in the newly created 776.09.

Essentially, this statute is modified to allow for the expunction of a criminal record when the applicant meets the conditions of 776.09, and provides a copy of the state attorney’s or court’s finding of lawful self-defense as well as a sworn affidavit by the applicant along with an application for expunction.

This section does not provide an absolute right to expunction—this is still a matter for the court’s discretion—but it provides a statutory process for seeking expunction.

And that’s it. Here’s the embedded SB-448 as it was passed by the Senate today by a 32 to 7 vote, and how it will appear on the Governor’s desk for his all but certain signature:

–-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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This…better than most things…illustrates the difficulty of drafting a law that NOBODY can pervert. Especially prosecutors.

It won’t…and it shouldn’t…help if your “warning shot” was tossed off at the head of your target.

    I read in a story just yesterday that Alexander’s defense failed at trial because she did not physically place a bullet into her target, implying she was convicted due to bad aim…

    The only reason Alexander is involved with this bill, which seems just fine, is because one of the legislators made sure she was cited as the inspiration for purposes of CNN etc.

Uncle Samuel | April 3, 2014 at 7:17 pm

Meanwhile, Judge Nelson has released the names of the Zimmerman jurors and the Orlando Sentinel has published them. (hoping for more bloodshed to report?)

    We have sunshine laws and open records laws in Florida. In most cases, jurors’ details are public record as soon as the trial is over. In a few rare cases (Casey Anthony, George Zimmerman), the trial judge may order a delay in making those details public, but they’ll always eventually be released. Justice must not only be done, but be SEEN to be done. Openly.

    We don’t do secret trials here. It’s odd that so many at that conservative nuthouse there seem to believe we should.

      Uncle Samuel in reply to Amy in FL. | April 4, 2014 at 3:03 pm

      The trial WAS public, televised and all the evidence laid out for the public.

      However, the names and addresses of the jurors is nobody’s damn business not in the public’s interest.

      Especially in a notoriously venomous atmosphere as Julison, Parks and Crump with the help of Holder, Obama, Sharpton, Ferrakhan, Jackson, Spike Lee, Ophrah and Roseann created.

        Uncle Samuel in reply to Uncle Samuel. | April 4, 2014 at 3:12 pm

        If I were a juror in FL, I would refuse to serve on a notorious jury if there were any chance my name and address would be released to the public and/or published in a leftist rag like the Orlando Sentinel or the Miami Herald.

        There are responses to their questions that will make both sides strike you from the jury. If it’s a civil trial, I mention all the physicians and lawyers in my family. If it’s a criminal trial, I always mention that Mama caught a burglar who was repeatedly breaking in her business with the help of her sister when the local sheriff couldn’t/wouldn’t. I always get excused first.

          Gremlin1974 in reply to Uncle Samuel. | April 4, 2014 at 7:20 pm

          I’ve only actually made it onto one Jury for which I was considered anyway. Usually the fact that I worked with criminally insane drug abusers for 10 years gets me booted swiftly, if that doesn’t then my views on criminal punishments usually does the trick.

          I actually had a Judge threaten to hold me in contempt for answering that I believed that public hangings and non-public firing squads should be reinstated, until he questioned me further and realized that I was being completely honest about my views. Admittedly, my views have become somewhat tempered with age and experience, I no longer believe in public hangings.

          “There are responses to their questions that will make both sides strike you from the jury.”

          Yep. You don’t even have to get that personal, or wait that long. When the judge does his first round of questions, he will hit on ‘Will you be guided by the law I give you, and only the law I give you ?’, Say no.

          Not that bluntly, but rather ‘Your Honor, I don’t understand how it is that if I feel, based on everything I believe is right, that a verdict should be one way, how I can be expected to vote the opposite way ‘because some law somewhere says so ? How can I vote against my conscience because ‘the law says so’ ?’.

          You won’t have to wait for the lawyers to throw you out, the Judge will.

        MouseTheLuckyDog in reply to Uncle Samuel. | April 4, 2014 at 6:23 pm

        I just posted this in the OS, I thought it worth repeating:

        Whatever went on in the jury basically is secret. If jurors slept during deliberations, if they were high or drunk, every jury trial, legal precedent holds that it is for the most part sacrosanct. As in a “holy” secret. The courts take it that seriously. The very few times that the courts are allowed to look at what happened in the jury room is when there is evidence of bribery or external threats against jurors. Even if a juror comes forward later and says they were threatened by another juror that is not sufficient to open the deliberations to scrutiny.

        So what good does revealing the names of the jurors do?

        MouseTheLuckyDog in reply to Uncle Samuel. | April 4, 2014 at 6:25 pm

        Also given the nature of jury service, you might be able to argue that releasing the names of jurors borders on viuolating Federal law. No matter what Florida law says.

      JackRussellTerrierist in reply to Amy in FL. | April 4, 2014 at 5:48 pm

      The law should be amended to include an exception for any trial in which a verified death threat has been made by anyone to either party, jurors or witnesses.

      Jurors should not have to put up with the vile likes of the NBPP, La Raza, etc., for having done their civic duty.

The partial repeal of the 10-20-Life mandatory sentencing law for the crime of aggravated assault is fine, if relatively meaningless, in most cases.

The problem that I see with this law is statutorily equating the threatened use of force with the actual use of force. As written, this bill will severely restrict when a person can threaten to use force. It might curtail the prosecution of people for threatening to use force in self defense, then again, it might not. We’ll have to wait and see exactly how the law is applied. This potion of the bill was justified by claiming that there is a widespread problem of people being charged with aggravated assault for threatening the use of deadly force when the actual use of such force is justified by statute. Yet, we have seen no statistics to back up such a claim.

We’ll just have to see how this plays out.

In my opinion, the new language does change the protection and may weaken the protection (depending on future case law).

FL 776.012 states a person “does not have a duty to retreat” if “(1)  He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013. ”

Section 3 reads:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony

So currently a person may meet force with force in any place he or she has a right to be. That additional protection is now watered down. Also the words “stand his or her ground” no longer apply and are replaced by no duty to retreat.

This change will require new jury instructions for defensive use of force outside of a home, business or occupied vehicle. New jury instructions mean new case law.

    “Also the words “stand his or her ground” no longer apply and are replaced by no duty to retreat.”

    What do you envision is the substantive difference between “stand your ground” and “no duty to retreat”?

    To my mind, these are legal synonyms. If anything, “no duty to retreat” is the more generous, and therefore more favorable to the defender.

    –Andrew, @LawSelfDefense

      sequester in reply to Andrew Branca. | April 3, 2014 at 8:46 pm

      It may indeed turn out to be a distinction without a difference. Time will tell. But never underestimate the remarkable ability of Florida State Attorneys to divine crimes. The impact of the wording change will ultimately be decided by the Committee on Standard Jury Instructions, the District Courts of Appeal and the Florida Supreme Court.

      I am concerned that the words meet force with force will be gone from a whole class of self defense jury instructions. The wording change means that some of our prosecutors may now argue that too much force was employed in what had formerly been a lawful self-defense case. State Attorneys will argue that the principles of statutory construction require the Courts to consider that the legislature intended a different use of force standard when someone is outside of a home, business or vehicle.

      The ultimate fallout is hard to predict. I can predict that Florida prosecutors will try to exploit the new wording.

      Oh, you want to play word games now ? What are you, a freaking lawyer or something ? 🙂

Wouldn’t it have been easier to just merge the two statutes together – make a threat to use force the same crime as a use of force? Seems to me that all this rube goldberg wordsmithing is nothing more than an effort to expand the playing field for criminal attorneys (this does not mean attorneys who commit crimes!).

They wouldn’t have needed a law if prosecutors weren’t out of control and agenda driven.

what’s needed is prosecutorial oversight laws, that’s where the law is coming undone.

Overcharging to force a plea deal is wrong.

Lawyers know it, the prosecutors know it, the judges know it, the people in the dock know it, so why can’t we get some oversight somewhere in one state to start the ball rolling?

It’s time to trim the egos in the DA’s office and put them on notice that they are not outside the law.

    I agree.

    But if there is not going to be adequate oversight, 100% of a prosecutor’s incentive structure (absent his own personal moral compass) is to overcharge, get pleas, and move defendants through the system swiftly. Helps get them re-elected, too, for those who are elected, and for those who aren’t elected the ones that ARE elected are their bosses.

    The situation in Florida is an entirely predictable one, having any basic understanding of human nature.

    But it seems unlikely they will change soon. The violent crime rate in Florida was, in living memory, truly horrific. Burning tires were being thrown in cars on the Interstate, passengers hauled out and raped, killed (this would be the 1980s, I was living there at the time).

    In the same time frame, Miami was set afire, and residents swept out to ravage the surrounding environs.

    Every Floridian there at the time remembers, and every one of their children still there remembers their parents grabbing their firearms and ammunition, and peering anxiously through the windows.

    It was an inflection point of criminal justice in Florida, and a large motivator to the State’s early adoption of both concealed carry and mandatory minimum sentencing.

    I expect it will take a generation to see any change in either–and that’s assuming their actual living experience recommends a change, which I doubt severely.

    –Andrew, @LawSelfDefense

      Actually, the push for minimum sentencing and the change in the concealed carry licensing laws did not result from the 3 riots that occurred in Florida from 1980-1987. These events were largely confined to lower economic areas. The more commonly accepted reasons for the change were inter-drug cartel violence, which spilled over into suburban shopping malls and other upper class areas and the rising crimes against persons resulting from the crack cocaine epidemic, which again affected the upper middle class and upper class. The seeming reluctance of judges to hand down significant sentences to violent criminals fueled the demand for minimum mandatory sentences for firearm violence.

        I’ll defer to you on the underlying drivers of the mandatory minimums, Mac. We left after the riots.

        –Andrew, @LawSelfDefense

        I thought the ‘shall carry’ came from the bump & rob events, back when the tourist rental cars had a little “R” on the plate.

        Once they passed out carry permits like popcorn, and a couple bad guys got shot, that crap stopped over night.

    Ragspierre in reply to jakee308. | April 4, 2014 at 11:02 am

    “It’s time to trim the egos in the DA’s office and put them on notice that they are not outside the law.”

    Two thoughts…

    1. You expect cats to bark. People who do trial work HAVE to have considerable egos, and most surpass the basic requirement…sometimes because of (literally) pathologies that drive them to be trial lawyers. Prosecutors are OFTEN driven by a highly exercised sense of public service, which can (in my observation DOES) often lead them toward being demi-tyrants. AND all incentives are pushing them to get “criminals off the streets”, keep their clearance rates high, etc.

    2. What they are doing IS PERFECTLY INSIDE THE LAW. We have authorized them to do what they do, given them the office and power to do it, and provided them the incentives.
    While we agree that is often IMMORAL, it is certainly LEGAL.

I know there are cases where prosecutors overcharge due to innocent reasons, like excessive zeal or sympathy for the victim, not that overcharging is ever justifiable.

Mainly it is used to force a plea which enhances the prosecutors’ records and conviction rates. This is a travesty of justice. Certainly there are circumstances where a conspirator should be overcharged to force testimony or information on the co-conspirators, but such cases are not the rule but the exception. Usually it is just a bullying tool.

Now, sure, most of those being charged are guilty, but not every case is a slam dunk on the evidence, as we’ve seen. To use overcharging to intimidate a defendant into avoiding a trial because he has a good chance of a not guilty verdict may be smart tactics, but I want the prosecutor I am paying to work towards truth and justice, not just victory at any cost. If the case isn’t a sure winner on the evidence, don’t charge at all!


I said all that to say this: it appalls and angers me that prosecutors would use an ambiguous case like a threat that would have been legal use of force in self defense or the “theft by nonpayment” of a pizza, and convict someone under a 10-20-Life or “3 strikes” law. Judges have no discretion in those cases, only prosecutors do.

    Estragon in reply to Estragon. | April 4, 2014 at 1:45 am

    When I say a case should be a “sure winner on the evidence,” I mean that the admissible evidence clearly and unambiguously proves guilt and the defendant could only be acquitted by a rogue jury in a miscarriage of justice (which happens sometimes, it is unavoidable).

Karen Sacandy | April 5, 2014 at 10:57 am

I thought it was expungement.