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Florida “Warning Shot” Bill Advances, But Misnamed

This bill seems to be to be some duct tape added to the giant ball of fail that is Florida’s criminal law, so in that sense I tend to agree with Bob Owens of Bearing Arms that “[t]his is bad legislation piled up on top of bad legislation, instead of legislators admitting that they made a mistake.” Florida’s criminal laws seem particularly nutty and laced with unintended consequences from legislators showing how they are “tough on crime.” But having read this post at Legal Insurrection, and read the HB89 bill, the characterization of this as the “Warning Shot” Bill is greatly overblown by the media.

The bill in no way, shape or form authorizes warning shots, and the media is grossly irresponsible for suggesting it does. Why? Because when it passes, there will be people who have an entirely false belief they have state sanction to fire warning shots. This matches the media’s gross irresponsibility of characterizing elimination of the duty to retreat as a “shoot first” bill that lets you blast away at anyone you feel a little scared of. When you spread this kind of nonsense, there are certain people who are going to believe it. It makes a culture of violence more likely, not less. It becomes a self-fulfilling prophecy. But I suppose they don’t care about the body count, as long as it advances their agenda of reinstitution the duty to retreat from your attacker before resorting to use of deadly force to protect yourself.

All this bill says is that if you’re justified in using deadly force, you’re justified in also threatening to use deadly force. Could that be a warning shot? Maybe. But this bill never mentions warning shots. As Legal Insurrection points out, even under this bill, Marissa Alexander would still be in jail.

27 Responses to “Florida “Warning Shot” Bill Advances, But Misnamed”

  1. Hey, how come Bob gets mentioned by name, but not my post is just identified as being from Legal Insurrection? :-)

    Just kidding, thanks for the mention of the post.

    –Andrew, @LawSelfDefense

    • Sebastian says:

      Hahaha… sorry… normally I mention sites if they are multiple author sites. But Bob Owen’s venture at Bearing Arms is new, so I though I’d add his name so people know that Bearing Arms is Bob’s Owen’s new venture. Bob has been blogging in this community for a long time.

  2. ctd says:

    The problem with warning shots is the bullet will hit SOMETHING, a fact unconsidered when most warning shots are made.

    • Sebastian says:

      Yeah. Warning shots are still a bad idea even after this bill passes. That doesn’t change anything. But if someone is stupid and does fire one, and it doesn’t hit a bystander or cause some other kind of damage, they aren’t going to be looking at 20 years in prison.

    • Sebastian says:

      So I don’t really agree with warning shots, but I also don’t think a warning shot that doesn’t cause any harm to be something that justifies sending someone to prison over. A low level misdemeanor? Sure. A 20 year felony? No way.

  3. Remember, act claimed as self-defense has to be reasonable under the circumstances. Anybody firing a warning shot STILL has to convince cops, prosecutors, judge, jury, that doing so was reasonable under the circumstances. If it wasn’t, then it doesn’t qualify as self-defense, and if not done as self-defense this “warning shot” bill and the changes made to Florida’s SD statutes have no application.

    In other words, the “warning shot” bill does not “authorize” warning shots regardless of their reasonableness, and does not allow for the unreasonable use of warning shots.

    The bill merely provides that when a threat of deadly force is made in reasonable self-defense the person is free of criminal liability, just as if they had reasonably used actual force in self-defense.

    I don’t imagine it would be very difficult for even a moderately competent prosecutor to argue that just about any warning shot is inherently unreasonable, and therefore not privileged as self-defense, for any of the dozen or so reasons any person on this list could list off the top of their head.

    –Andrew, @LawSelfDefense

    • Matthew Carberry says:

      Andrew,

      The thought that popped into my head was that of a necessity defense.

      I have read of unlawful carry being not prosecuted when the illegally carried weapon was used in legitimate self-defense as the fact that the self-defense was justified proved the unlawful carry was necessary. (I’m undoubtedly stating that poorly.)

      It seems to me this expansion simply formalizes that for warning shots.

      • Well, we’re kind of getting into the weeds, but:

        Necessity defense would be very difficult with a warning shot, because a necessity defense requires that any harm you cause or the danger you create be less than the harm or danger you sought to avoid. That’s tough with a warning shot–a fired bullet may cause considerable harm, e.g., if it hits an innocent person and kills them, and ALWAYS creates a substantial danger of considerable harm.

        Whether or not the harm with which you were threatened is greater than that–well, that’s going to be determined by the jury after they’re told the prosecution’s compelling narrative of guilt and the defense compelling narrative of innocence–after all, the jury wasn’t there. The difficulty is that the warning shot was actually fired and is concrete–the threat to you is amorphous and unrealized.

        Dangerous ground for the defense.

        Unlawful carry CAN be justified under self-defense, but it almost never is. These cases invariably involve a felon who cannot be lawfully in possession of a firearm because of that status. Technically, a felon can’t even merely pick up some else’s gun off a table.

        If, however, a machete-wielding psychopath intent on murder was rushing at the felon, the felon could pick up the gun, defend himself, put the gun back down, and likely have his momentary possession justified as lawful self-defense.

        In the real world, however, the unlawful possession is not momentary and in the face of imminent threat of death, but rather is invariably a matter of habitual unlawful possession/carry, perhaps in fear of some speculative (even if likely to occur) attack. And THAT cannot be justified as self-defense.

        –Andrew, @LawSelfDefense

        • Matthew Carberry says:

          Thank you.

          And let me say thank you as well for the Zimmerman coverage last year; it helped me explain a lot of self-defense principles to friends and loved ones.

          And I like the weeds, that’s where a lot of the interesting stuff lives. ;)

          • Ah, well, covering Zimmerman was a labor of love, but thanks for the kind words.

            Hey, you know the best way to say thanks, right?

            “Law of Self Defense, 2nd Edition”: http://www.lawofselfdefense.com

            A seminar is even better (and comes with a free book!). :-)

            • Matthew Carberry says:

              Ah yes, filthy lucre, it means “thank you” in every language. ;) I’ll take you up on that.

              Probably no chance of a seminar in Anchorage though.

              • Find me a host, I’ll come. Gimme half an excuse, I’ll ride it–that ride’s still not checked off the bucket list. :-)

                Details on seminar logistics, also reviews of past seminars: http://lawofselfdefense.com/seminars/

                –Andrew, @LawSelfDefense

              • Also, if you’d like an autographed book, be sure to order from lawofselfdefense.com (those are the only books I physically handle). You can specify the autograph when you order.

                –Andrew, @LawSelfDefense

                • Matthew Carberry says:

                  Plced the order a minute or so after I posted. Musta missed the autograph option. Can’t promise anything but I’ll check with some folks about hosting a seminar.

  4. Carl from Chicago says:

    I guess I shall continue to employ reasonable common sense on these matters, and not switch over to what the media is telling me I can or should do.

    • Common sense will mostly work.

      Mostly.

      Sadly, the law itself is not always “common sense.”

      Best to be actually informed on the law’s vagaries, rather than find yourself shocked at arraignment–or verdict.

      –Andrew, @LawSelfDefense

  5. Henry says:

    The real benefit will be that if in the .75 seconds it takes to draw Dirtbag has a change of heart and no longer needs shooting you can’t later be charged with Pointing or Brandishing. Existing law and the prosecetorial culture around is has lead to the advice, either right or wrong, that if you draw you must shoot.

    “Why were you waving a gun around?”
    “I feared for my life!”
    “Well then why didn’t you shoot?”
    “I … uh …”
    “Guess you didn’t really fear for you life then, huh.”

  6. GMC70 says:

    This is a good bill, and will prevent miscarriages of justice. This bill was passed in my state, AFTER such a miscarriage. see State v. Hendrix, 218 P.3d 40. Essentially, Hendrix could not get an instruction on self-defense, or defense of others, because he didn’t actually fire a shot.

    Imagine this scenario: goblin approaches you, knife in hand, with threatening intent, and you draw your firearm. Goblin sees gun, decides you’re not a soft target, and retreats. Good outcome, right? Yes, EXCEPT you’ve committed an agg. assault, and at trial, you’re not entitled to an instruction that the jury may consider self-defense. It’s common sense, really – if the threat of force, in a self-defense situation, ends the threat without the use of force, such a threat is justified.

    Without the law, the threat of force becomes itself a crime, even if used in self-defense.

    And Sebastian is exactly right – the misinformation and intentional mischaracterization of the law is shameful and dangerous. But when the media has an agenda, that’s what they do.

    • If anyone is interested, I have the full text of State v. Hendrix, 218 P.3d 40 (KS Supreme Court 2009) available on my blog: http://is.gd/O7q5Ll.

      GMC70’s description is entirely accurate, but I know some of you are “show me” people when it comes to cited cases, statutes, etc. (as I am, too).

      –Andrew, @LawSelfDefense

    • Matthew Carberry says:

      How was “deadly force” defined in statute?

      In AK the justification is for reasonable “use of deadly force” (11.81.335) and “deadly force” is defined as including the threat of such force.* I think that means such an addition wouldn’t be necessary here. Haven’t looked for any case law.

      * – “11.81.900(16) “deadly force” means force that the person uses with the intent of causing, or uses under circumstances that the person knows create a substantial risk of causing, death or serious physical injury; “deadly force” includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument;”

  7. Also available on my blog is the full-text of Kansas’ version of its “warning shot” bill, KSA (Kansas Statutes Annotated) 21-5221.”Use of force; definitions.”: http://is.gd/S5F6zK

    The legislative history confirms that KSA 21-5221 (previously numbered 21-3211) was explicitly amended in April 2010 to allow for the threat of force in self-defense, in direct response to State v. Hendrix, as noted by GMC70s.

    –Andrew, @LawSelfDefense

    • GMC70 says:

      Thanks Andrew – I’m busy on a brief arguing one of Kansas’s less desirable legislative actions is unconstitutional – here, they’ve criminalized refusing to blow during a DUI investigation, essentially criminalizing the exercise of a constitutional right.

      Yeesh.

      I just left the cite, and folks could look it up if they desired. Hendrix was a big deal here, and the legislature recognized the problem and fixed it immediately after the case.

  8. Jeffrey Smith says:

    1) In this particular ball of legal fail, the Florida courts had a share; it’s not all the legislature’s fault.
    2) Wouldn’t a “warning shot” (meaning “pull trigger, bullet leaves gun”) itself be deadly force (in contrast to simply pulling the gun out and pointing it)>

    • There’s a lot of variance on what can constitute force (actual contact/harm, attempted contact/harm, actual fear of harm, attempted fear of harm, verbal threat of harm, etc.) , and for what purposes (e.g., what constitutes “force” can be different in the context of a robbery than in the context of self-defense).

      In MA, for example, the mere display of a firearm in self-defense is treated exactly the same, for purposes of “use of force” as shooting the person, in that you’d better meet the conditions for deadly use of force in self-defense for either scenario if you wish to avoid jail.

      In another state–I’m thinking it’s Louisiana, but don’t hold me to it–one cannot actually use deadly force in response to a non-deadly attack, but one CAN THREATEN deadly force in response to a non-deadly attack. So, you can waive your gun around in the face of a simple assault with full legal justification, but heaven forbid you actually use it you’d have no legal justification. Weird, from both a legal and tactical perspective.

      That last one may not be Louisiana, but they do have some odd SD laws, compared to other states. For example, in other states whether a particular defensive force is “deadly force” for SD purposes is a function of the force itself–a force reasonably capable of causing death or grave bodily harm–and it doesn’t matter if the person you use that force against ACTUALLY suffers the death or grave bodily harm.

      In Louisiana, it’s flipped such that it’s the outcome, not the force, that determines whether the force was deadly force. See the recent case where the homeowner shot the black teenager who’d climbed over his fence. Despite having been shot through the head, the teenager remains alive. As long as that’s the case, the homeowner’s act of self-defense need only meet the less stringent requirements of non-deadly self-defense, even though he used a gun.

      –Andrew, @LawSelfDefense

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