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Florida’s just-signed “warning shot” law unlikely to help Marissa Alexander

Florida’s just-signed “warning shot” law unlikely to help Marissa Alexander

Marissa Alexander supporters grasping at “warning shot” law straws

It was with considerable astonishment that I read the following headline in an ABC news post:

Marissa Alexander, who fired warning shot at husband attacking her, likely won’t see prison after Florida changes ‘Stand Your Ground’ law

One wonders if they had to work extra hard to get four errors into a single headline, or if it’s just a talent.  I guess we’ll never know, because no authorship is associated with the piece.  If I’d written this post, I’d want to be anonymous, too.  Let’s take a look at the errors one at a time.

Alexander “Fired Warning Shot”

The article states:

She said she raised the gun and fired a warning shot into the air to scare him off, rather than hurt him.

Really.  She fired a warning shot “into the air”? Well, I suppose any time one fires a gun without being either under water or in space, one is technically firing “into the air.”  The impression they are trying to create, of course, is that Alexander fired upwards into the air, that is, in a harmless direction, because she wished “to scare him off, rather than hurt him.”

It’s curious then, then the forensics photos don’t show a bullet hole in the ceiling above where Alexander was standing.  Instead, the bullet hole in the room in which she fired the gun is in the wall behind where her husband and his two minor children were passing.  The bullet she fired “into the air” travelled through that air horizontally, past the heads of her husband and his children, into the wall behind them, through that wall, into the next room, and finally embedded itself into the ceiling of the next room.

One of the children who took the witness stand at Alexander’s first trial testified that he thought they were going to die.

That’s some “warning shot.”

Alexander Shot “At Her Husband Attacking Her”

The article states:

She claimed that he broke through a bathroom door that she had locked and grabbed her by the neck. She said she tried to push past him but he shoved her into the door, prompting a struggle.  Afterwards, Alexander claimed that she ran to the garage and tried to leave but was unable to open the garage door, so she retrieved a gun, which she legally owned.  Once inside, she claimed, her husband saw the gun and charged at her “in a rage” saying, “I’ll kill you.”

It’s worth noting that at no point prior to Alexander arming herself with a pistol was there a claim of deadly force being threatened against her.  In fact, even stipulating to these facts as provided, it was Alexander–not her husband–who was the deadly force aggressor in this fight.  And as the deadly force aggressor, she cannot justify her use of force as self-defense unless she first attempted to withdraw.

To put it another way, even if Alexander had been entitled to argue she had no duty to retreat (under either the Castle Doctrine or Stand-Your-Ground, take your pick) prior to retrieving her pistol, once she actually retrieved her pistol and became the deadly force aggressor, she also acquired a legal duty to retreat before she could claim self-defense as justification for her use of force.  She did not, of course, retreat, but rather returned to the scene of the fight and fired a bullet past the heads of her husband and his two minor children.

Then, after doing all that, she didn’t call the police to report that she’d had to fire a “warning shot” to defend herself against a life threatening attack. Instead, it was her purported lethal attacker–her husband–who phoned the police. Alexander fled the scene, much like Michael Dunn would flee the scene after killing Jordan Davis.  And just as the police had to go collect Dunn, so did they have to go collect Alexander.

In legal circles we refer to such conduct as “consciousness of guilt” evidence–the indicia of a person who themselves believes they have acted wrongfully.

So not only isn’t this a “warning shot” case, it’s not even a self-defense case.

(Incidentally, the garage door functioned properly for everyone who isn’t named “Marissa Alexander,” both before and after the shooting.

Alexander “Likely Won’t See Prison”

If it’s not already obvious from what I’ve written above, the odds are very high indeed that Alexander is simply guilty of three counts of aggravated assault with a firearm, that she will be convicted again, and she will be sentenced to at least 20 and perhaps as many as 60 years in prison.

Florida “Changes ‘Stand Your Ground’ Law”

The newly passed “warning shot” bill makes absolutely no substantive change to this “Stand Your Ground”.  It operates today exactly as it did before–retreat is simply not an element of Florida’s self-defense law, if one is an innocent defender.

The “warning shot” law did clarify that Florida’s self-defense law applies as well to a mere threat of defensive force, under circumstances where the actual use of force would have been lawful self-defense.

And that last part “. . . where the actual use of force would have been lawful self-defense,” is the key to understanding why this warning shot bill is unlikely to have any benefit for Marissa Alexander.

Under the facts of this case, she would NOT have been lawfully justified had she shot her husband through the head in front of his children.  Given that she would not have been justified to actually use deadly force. she’s by extension not justified to merely threaten deadly force.

EDIT: “Warning Shot” Bill Unlikely to be Applied Retroactively

As commenter I R A Darth Aggie noted below, it is very unlikely that the new “warning shot” bill would even be applied to the Alexander case, because few laws are applied retroactively–that is, to events that took place prior to their passage.  Where retroactivity is intended by the Legislature, they add explicit language to the bill for that purpose.  No such language exists in this bill.

Further Nonsense of Interest

The article states:

The jury rejected Alexander’s claims of self-defense, and said the “Stand Your Ground” law didn’t apply to her because she had not been harmed in the struggle.

I seriously doubt the author of this article accessed some survey of the jurors in which they collectively stated anything whatever about “Stand Your Ground.”  If so, I’d like to see the source.  Jurors rarely spell out the details of why they came to a particular verdict.

In any case, “Stand Your Ground” has absolutely nothing–zero, zip, nada–to do with whether injury was incurred or not.  “Stand Your Ground” deals with the issue of a legal duty to retreat before acting in self-defense. Period. Injury or lack thereof is not a consideration.

It then goes on to quote Alexander’s legal team as stating:

We are of course grateful for the governor’s actions.

Naturally.  Anything that obfuscates the actual law and facts relevant to this case is likely to be helpful in their efforts to get this woman released.

As the legal saying goes:

If the law is on your side, pound the law.

If the facts are on your side, pound the facts.

And if neither is on your side, have ABC write a puff piece for your case.”

–-Andrew, @LawSelfDefense

[UPDATE: This post was updated 6/25/14 to add the brief section on retroactivity.]


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 and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces a series of Law of Self Defense Videocasts and Podcasts available on iTunes, Stitcher, and RSS).

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Comments

I’m waiting for them to call her a white hispanic male……

Like the love of God…

the stupid here surpasseth all understanding…

Wholly CRAP…!!!

I R A Darth Aggie | June 24, 2014 at 12:28 pm

You didn’t even mention that whole pesky ex post facto thingie…

    Haha, you’re right, there was so much on the plate I forgot that piece. Absent explicit language that the law is intended to apply retroactively–and there is no such language in the law–standard practice is to NOT do so.

    –Andrew, @LawSelfDefense

      Milhouse in reply to Andrew Branca. | June 25, 2014 at 4:43 am

      Hmm, in this case it should apply retroactively, since the legislature was just clarifying something that should have been obvious all along, and that it clearly intended when it passed the original legislation.

“Fair is foul, and foul is fair” Macbeth ( Quote Act I, Scene I)

or better yet,

“Out, damned (facts)! out, I say!” – ( Quote Act V, Scene I)(abridged by JAJ)

Do you have a link to that Onion article you’re quoting Andrew?

There is nothing like working in the news business to give one a perspective on it. Accuracy is usually intended, but even outfits that once went to considerable trouble to ensure it don’t anymore. It’s expensive, screws up some of the best stories and more importantly, the narrative the bosses want to reinforce.

News consumers are like movie audiences: they tend to suspend disbelief and accept the most ridiculous premises.

A common phenomenon is to find a story on something you know much about – like Andrew on self defense law, but it could be anything from book publishing to hot air ballooning. Invariably the reader will find them riddled with errors, some laughably so.

The reader shakes his head, but goes on to the next story, about which he knows little, and just assumes it is accurate.

But WHY? The stories you can fact-check in your own experience are all garbage, why expect anything different just because you aren’t an expert on the next subject?

    tom swift in reply to Estragon. | June 24, 2014 at 3:37 pm

    The reader shakes his head, but goes on to the next story, about which he knows little, and just assumes it is accurate.

    A common experience, but I’ve never found a name for it. There must be one.

      Milhouse in reply to tom swift. | June 25, 2014 at 3:23 am

      Indeed there is. It’s called the Murray Gell-Mann Amnesia Effect. It was identified and named by Michael Crichton in this talk.

      Media carries with it a credibility that is totally undeserved. You have all experienced this, in what I call the Murray Gell-Mann Amnesia effect. (I refer to it by this name because I once discussed it with Murray Gell-Mann, and by dropping a famous name I imply greater importance to myself, and to the effect, than it would otherwise have.)

      Briefly stated, the Gell-Mann Amnesia effect is as follows. You open the newspaper to an article on some subject you know well. In Murray’s case, physics. In mine, show business. You read the article and see the journalist has absolutely no understanding of either the facts or the issues. Often, the article is so wrong it actually presents the story backward—reversing cause and effect. I call these the “wet streets cause rain” stories. Paper’s full of them.

      In any case, you read with exasperation or amusement the multiple errors in a story, and then turn the page to national or international affairs, and read as if the rest of the newspaper was somehow more accurate about Palestine than the baloney you just read. You turn the page, and forget what you know.

      That is the Gell-Mann Amnesia effect. I’d point out it does not operate in other arenas of life. In ordinary life, if somebody consistently exaggerates or lies to you, you soon discount everything they say. In court, there is the legal doctrine of falsus in uno, falsus in omnibus, which means untruthful in one part, untruthful in all. But when it comes to the media, we believe against evidence that it is probably worth our time to read other parts of the paper. When, in fact, it almost certainly isn’t. The only possible explanation for our behavior is amnesia.

        tom swift in reply to Milhouse. | June 25, 2014 at 10:30 am

        Great! Thanks.

        I refer to it by this name because I once discussed it with Murray Gell-Mann

        Pretty tenuous, but it’s a time-honored tradition; the first one known to have discussed the disease in print can name it whatever he wants.

It is almost as though a complete ignorance of anything to do with guns, other than they are “icky”, is a requirement to be “in” with the journalistic sub culture.

I once heard a reporterette refer to a hand gun used in a crime as a 25 millimeter hand gun. Recently there was a school shooting near Portland, Oregon. Another classically trained highly professional journalist with layers and layers of fact checkers supporting her referred to the AR 15 used in that shooting as a “large caliber” assault rifle. I am not an expert on the AR 15 but I thought they were pretty much .22 caliber.

    Phillep Harding in reply to Anchovy. | June 24, 2014 at 4:34 pm

    Actually, the AR-15 lower can have all sorts of barrels and actions added (“uppers”). But you are probably correct that it is the .223cal/5.56mm.

    Ragspierre in reply to Anchovy. | June 24, 2014 at 6:18 pm

    OK, I WANT the 25mm handgun.

    Along with the exoskeleton I’d need to control it…

One wonders if they had to work extra hard to get four errors into a single headline, or if it’s just a talent. I guess we’ll never know, because no authorship is associated with the piece.

Having the author’s name wouldn’t help you, because newspaper headlines are written by subeditors, not by the reporters who wrote the stories. Sometimes the headline contradicts the story, showing that the subeditor didn’t bother reading it.

I’m actually surprised you didn’t know this.

    The errors are also in the body of the story.

    The headline editor doesn’t write the body of the story.

    I’m actually surprised you didn’t know this.

    –Andrew, @LawSelfDefense

      Milhouse in reply to Andrew Branca. | June 25, 2014 at 9:44 am

      How’s that relevant to your statement? You wrote that we can’t know who wrote the headline because there’s no byline on the story. That means you think if there was a byline we would know who wrote the headline. I expressed genuine surprise that you could think this. Not only do you respond with an irrelevant fact, but also with completely uncalled-for snark. You may know your subject, but you’re a jerk and a bully.

        A jerk AND a bully? All from three brief sentences?

        Remarkable. 🙂

        –Andrew, @LawSelfDefense

          Milhouse in reply to Andrew Branca. | June 25, 2014 at 12:05 pm

          That short comment was enough to draw this conclusion, but in fact I didn’t have to rely just on that. You’ve been displaying this nasty character trait for a long time. Whenever someone disagrees with you on any point, however minor, or corrects you, or just informs you of something you didn’t know, you react with hostility.

          Hahaha! If this is a sock puppet of my ex-wife, please be aware the restraining order is still in effect. 🙂

          –Andrew, @LawSelfDefense

        Gremlin1974 in reply to Milhouse. | June 25, 2014 at 1:01 pm

        Well since it was an “internet” article and not a print article I doubt a “subeditor” wrote a darned thing.

        Also, I have on occasion corrected Andrew and he has been very thankful for honest corrections. However, what you did was challenge him and basically say that you couldn’t believe he was so ignorant that he didn’t know this one obscure fact.

        I am not sure what your understanding of being a bully and a jerk is, but my suggestion if you want a prime example of a jerk, you can find the closest mirror.

          Milhouse in reply to Gremlin1974. | June 26, 2014 at 3:29 am

          It’s an ABC News article. ABC News is a large news organization, with editors and subeditors, just like newspapers.

          And this is not an obscure fact. It’s something that practically everyone knows. That’s why I was surprised that Mr Branca didn’t.

          If he were a nice person he would have welcomed the information and taken the correction on board, and next time he wouldn’t make the same mistake. But this is not the first time he’s reacted like this. He’s got a record here of expecting everyone to kowtow to his superior knowledge, and not taking correction on anything.

          Your obsession with me borders on the creepy.

          When I conclude I’m not sympatico with someone, my response is to cease engaging with them.

          Your response is to increase your engagement.

          Creepy.

          –Andrew, @LawSelfDefense

Andrew, what are your thoughts on the potential retroactive application of the law’s new exception to the mandatory minimum sentencing in cases of imperfect self-defense given the bill’s “whereas” language?

    There’s no indication of retroactivity in the bill, per se.

    The bill does state an intent to:

    “(d) Encourage those who have been sentenced to a mandatory
    minimum term of imprisonment pursuant to s. 775.087, Florida
    Statutes, for threatening to use force in a manner and under
    circumstances that are justifiable under chapter 776, Florida
    Statutes, to apply for executive clemency.”

    Chapter 776 consists of Florida’s self-defense statutes.

    But for reasons discussed at length above, Alexander’s conduct in being the deadly force aggressor removes that conduct from the context of 776 and self-defense. Thus even the legislature’s “encouragement” to seek executive clemency would not apply under the facts of Alexander’s case.

    Also seeking executive clemency does not change the mandatory minimum scheme. A violator is still sentenced to the mandatory minimum, and then can attempt to win executive clemency.

    –Andrew, @LawSelfDefense

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