A couple of days ago I posted up a piece re: Florida’s passage of its “warning shot” bill and the prospects for that bill helping the case of Marissa Alexander.
Florida’s just-signed “warning shot” law unlikely to help Marissa Alexander
I neglected, however, to point out one particular facet of Florida’s new law that could potentially–not reasonably, but potentially–provide some benefit to Alexander. So, I’ll cover that here.
Before I do, however, the enormous volume of misinformation that continues to be promulgated about this case obliges me to first point out all the ways the “warning shot” bill does not help Alexander.
The “warning shot” bill does not legitimize Alexander’s conduct as the deadly force aggressor, and does not turn that conduct into lawful self-defense. Leaving a non-deadly force fight and returning armed is not self-defense, particularly when the person you shoot at is lawfully in their own home (a different argument could be made in the case of an intruder, but not under the facts of this case). The “warning shot” bill does not modify Florida self-defense law to allow one to act as the deadly force aggressor and justify that conduct as self-defense.
The “warning shot” bill does not change the bullet that Alexander fired past the heads of her husband and his two minor children, and through the wall behind them, into a “warning shot.” When someone steps into a room angry and armed with a pistol, tells their intended victims “I got something for your ass,” and fires a bullet past their heads, that can best be reasonably characterized as a “miss,” not as a “warning shot” that was “fired into the air.” Thus none of the facets of the “warning shot” bill that clarify Florida’s self-defense laws as applying to both a mere threat as well as the actual use of force will be helpful to Alexander.
The “warning shot” bill does not retroactively change the criminality of Alexander’s behavior. Based on the facts in evidence–including the forensics evidence and the testimony of the two minor children who were among her victims, one of whom testified in court that “I though we were gonna die”–it is overwhelmingly likely that Alexander will again be convicted of three counts of aggravated assault with a firearm. Aggravated assault is still a serious felony carrying possible jail time on the order of 15 years, even after the passage of the “warning shot” bill.
In short, the recent ABC post headlined “Marissa Alexander, who fired warning shot at husband attacking her, likely won’t see prison after Florida changes ‘Stand Your Ground’ law,” remains laughably off the mark.
So, all that said, where within the “warning shot” bill is there some unlikely but potential benefit for Alexander? In these three magic words: good faith belief. (The great irony is that it does so via the same mechanism that “Stand-Your-Ground” opponents mistakenly believe makes that law unjust.)
One of the changes wrought by the “warning shot” bill is an addition made to FL statute 775.087, commonly known as “10-20-Life,” but formally named 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence. (We’ve covered “10-20-Life” extensively in prior posts, most recently here: Upcoming Florida Sup Ct ruling on 10-20-Life sentences may seal Marissa Alexander’s fate.)
It is “10-20-Life” that has resulted in the three 20-year mandatory minimum sentences levied against Alexander for her three aggravated assault convictions in her first trial. The sentencing judge ordered that these three sentences be served concurrently, resulting in a total sentence duration of 20 years.
Those convictions have since been overturned because of defective jury instructions, and Alexander is scheduled to be retried on the same charges again next month. Meanwhile, Florida law around “10-20-Life” has evolved in such a way as to suggest that these mandatory sentences must, in fact, be served consecutively, not concurrently. Such a consecutive sentencing would result in a 60-year prison term for Alexander.
“10-20-Life” has, however, raised considerable controversy in Florida, as mandatory sentencing schemes often do. The law remains popular when viewed as a means to keep violent predators who make criminal use of firearms off the streets for long periods of time. There have been cases, however, where “10-20-Life” has been arguably applied to people who were not violent predators but who believed they were acting in self-defense.
This was particularly the case where the gun was used to frighten a perceived attacker rather than to actually shoot that attacker. Some Florida prosecutors inanely began to argue that the state’s self-defense laws applied only to the actual use, not the mere threat, of force in self-defense. Even more inanely, some trial judges appeared to have bought into that argument.
If this ridiculous position is accepted, then a mere threat of force in apparent self-defense falls outside the protective bounds of Florida’s self-defense laws, stripping way all legal justification, and one is promptly convicted of aggravated assault with a firearm. And, under “10-20-Life” if one is convicted of aggravated assault with a firearm, one is served with a mandatory minimum 20-year sentence.
In one such case a father intervened in an argument between his adult daughter and her abusive boyfriend. In the course of the argument the father fired a warning shot, not directed at the boyfriend. The father was arrested, tried for aggravated assault with a firearm, convicted, and received the mandatory minimum 20-year sentence.
Scenarios of this type struck many as not being an appropriate application of “10-20-Life,” thus providing an impetus for changing the law. And that change was made effective in the form of Florida’s recently-passed “warning shot” bill.
Florida’s “warning shot” bill modified “10-20-Life” by adding the following language:
[T]he sentencing court shall not impose the mandatory minimum sentence [ . . . ] for a conviction for aggravated assault if the court makes written findings that:
(a) The defendant had a good faith belief that the aggravated assault was justifiable pursuant to chapter 776.
(b) The aggravated assault was not committed in the course of committing another criminal offense.
(c) The defendant does not pose a threat to public safety.
(d) The totality of the circumstances involved in the offense do not justify the imposition of such sentence.
This language effectively guts the “mandatory” qualities of “10-20-Life,” at least in the context of an aggravated assault and absent a concurring criminal offense, and effectively makes its application discretionary with the sentencing court.
I focus here particular on section (a), requiring that “the defendant had a good faith belief that the aggravated assault was justifiable [self-defense].” The phrase “good faith belief” in the context of self-defense law refers to a purely subjective belief. Were an objective belief to be an intended element here the statute would have required a “reasonable belief”–it does not. This means that a genuinely held, but totally unreasonable belief that one is acting in self-defense is adequate to meet this element of this exception to “10-20-Life.”
The irony in this is that opponents of “Stand-Your-Ground”–many of whom are the same people now defending the conduct of Marissa Alexander–have long claimed, falsely, that “Stand-Your-Ground” allows a person to kill in self-defense based solely on a subjective perception of fear, even if that fear is grossly unreasonable Thus they argue that “Stand-Your-Ground” permitted George Zimmerman to lawfully kill Trayvon Martin because Zimmerman possessed a subjective fear “just because Trayvon was a young black male,” or “just because Trayvon was wearing a hoodie,” or “just because Trayvon was carrying Skittles.”
This is, of course, utter nonsense. First, “Stand-Your-Ground” has utterly nothing to do with the reasonableness element of self-defense–it merely removes any otherwise existing duty to retreat before using deadly force in self-defense. Second, whether one is in a “Stand-Your-Ground” state or a “Duty-to-Retreat” state, any use of force in self-defense must be both objectively reasonable and subjectively reasonable.
That is, one’s belief in the necessity of acting in self-defense must be both that of a reasonable and prudent person in the same or similar circumstances, and the defender must also possess a good faith belief in this necessity.
No reasonable and prudent person would believe it is necessary to kill someone merely because they are a young black male, wearing a hoodie, carrying Skittles, or even all three–thus had any of that been true, Zimmerman would not have been entitled to claim self-defense or be acquitted on that basis.
In this modification of “10-20-Life,” however, a subjective good faith belief, even in the total absence of objective reasonableness, opens the door to escaping the statute’s mandatory minimum sentencing.
Now, one can reasonably ask whether an angry woman who had achieved a position of safety, retrieved a pistol, returned to the seat of the fight, pointed the weapon at her husband and his two minor children, in their home, told them “I’ve got something for your ass,” and fired a bullet past their heads into the wall behind them had, in fact, a “good faith belief” that she was acting within the bounds of Florida’s 776 self-defense laws.
I expect that any reasonable person would answer in the negative. But given the highly politicized nature of Florida’s judiciary, who’s to say? And given that the decision is made by the court via written findings it would seem that no explicit factual determinations need be made by the jury, thus cutting the jury (and the Prosecutor’s ability to argue the facts to the jury) out of the equation entirely.
Certainly the language of the statute provides the sentencing judge with plenty of cover should he decide he does not wish to impose “10-20-Life” on a defendant convicted of armed aggravated assault. “Hey,” he can say, “sure the defendant’s belief she was acting in self-defense was ridiculous and utterly unreasonable–but the statute doesn’t require that it be reasonable, merely that it be held in good faith. And the defendant says they held that belief in good faith.” Shrug.
There are, of course, other conditions that must also be met in order for an aggravated assault convict to escape the application of “10-20-Life.” Pretty much all of them, however, are equally subjective.
One of these additional conditions is that the defendant must not “pose a threat to public safety.” But who is to say whether a particular defendant poses a threat to public safety? Does Marissa Alexander, who fired a bullet past the heads of two minor children who presented no threat to her whatever, and who pled and was adjudicated guilty of Domestic Battery against the same husband she’d fired a gun at, “pose a threat to public safety”?
Another is that “the totality of the circumstances . . . do not justify the imposition of [the mandatory minimum] sentence.” It’s hard to imagine a requirement that would provide greater discretion to a sentencing court than that the court subjectively evaluate “the totality of the circumstances.”
And, finally, the aggravated assault must not have been committed “in the course of committing another criminal offense.” The notion here, one assumes, is that the legislature did not want someone committing an aggravated assault in the course of also committing an armed robbery or a rape to be exempted from “10-20-Life” under these changes. In contrast, the father defending his daughter against an abusive boyfriend would likely meet this condition.
As an aside, in Alexander’s case a reasonable argument could be made to the sentencing judge that she was, in fact, committing another criminal offense in the course of committing aggravated assault with a firearm–specifically, she was committing two additional acts of aggravated assault with a firearm (she is charged with a total of three counts of aggravated assault with a firearm). The statute does not say that the defendant must not have been committing another criminal offense other than another aggravated assault–it merely says the defendant must not have been committing another criminal offense. Period.
At one level, of course, all of this is really just indicative of how legislators, courts, prosecutors, and defendants–and society in general–all struggle with the imposition of mandatory minimum sentences. Almost invariably such sentencing schemes take on a pendulum-like cycle. Discretionary sentencing is perceived as being too lax, allowing vicious criminal predators to wreak havoc on the law abiding citizenry. Mandatory minimum sentencing is passed, and these vicious criminal predators get locked up for very long periods of time–almost invariably with the beneficial effects of a substantially safe society, as clearly apparent in the case of Florida.
On the down side, of course, it is unavoidable that the mandatory minimum “net” will also catch up certain individuals whose offenses possess facts that seem inappropriate for mandatory minimum sentencing. In these cases application of the mandatory sentencing may be perceived as–and may genuinely be–unjust, but the absence of discretion in sentencing demands the injustice. Resistance builds, and either the mandatory sentencing scheme is revoked outright (rarely) or it is chipped away at by the allowance for various exceptions (more commonly), as we see here.
In the specific case of Marissa Alexander, of course, all of this provides her with a best-case scenario (in my professional prognostication) not of being acquitted, but rather of being found guilty but sentenced outside the bounds of “10-20-Life.”–in other words, three non-mandatory minimum sentences for aggravated assault served concurrently. Such a sentence would likely be in the 10-15 year range, with allowances for sentence reduction for good behavior, parole, and other options not available to sentences levied under “10-20-Life.”
Not a “get out of jail” card, by any means, but certainly a more favorable outcome for Alexander than 60-years fixed time in prison.
–-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 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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