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

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

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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