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Thread: "Firing a warning shot at an attacker legal in Florida"

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    "Firing a warning shot at an attacker legal in Florida"

    This is the headline of an article posted on MSN.com this morning. The law is in response to a woman who was originally convicted for firing a warning shot at her abusive husband. In the article, the author says that some gun rights supporters are afraid this law may weaken existing pro-self defense laws. I don't know enough about the issue to have an informed opinion, but on the surface it seems like a very good law. I thought I would post the link to the article to see what those who are more informed think. I wonder if similar laws may now make there way to other states?

    http://news.msn.com/us/firing-a-warn...gal-in-florida

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    HB-89

    Link to follow.


    CS/CS/HB 89 - Threatened Use of Force
    General Bill by Judiciary Committee and Criminal Justice Subcommittee and Combee and Edwards (CO-SPONSORS) Ahern; Albritton; Baxley; Beshears; Boyd; Broxson; Caldwell; Campbell; Clelland; Cummings; Danish; Diaz, M.; Eagle; Fitzenhagen; Fresen; Gonzalez; Grant; Harrell; Hill; Holder; Hood; Hudson; Hutson; Ingram; Jones, M.; Jones, S.; Mayfield; McBurney; Metz; Murphy; Patronis; Perry; Pilon; Raburn; Raschein; Raulerson; Renuart; Roberson, K.; Rodrigues, R.; Rouson; Santiago; Smith; Spano; Steube; Stewart; Stone; Tobia; Van Zant; Young
    Threatened Use of Force: Prohibiting the court from imposing certain mandatory minimum sentences if the court makes specified written findings; applying provisions relating to the use of force in defense of persons to the threatened use of force; applying presumption relating to the use of deadly force to the threatened use of deadly force in the defense of a residence and similar circumstances; applying immunity provisions that relate to the use of force to the threatened use of force; providing that a person is not justified in the threatened use of force to resist an arrest by a law enforcement officer, etc.
    Effective Date: upon becoming a law
    Last Event: Chapter No. 2014-195 on Friday, June 20, 2014 3:00 PM

    http://www.myfloridahouse.gov/Sectio...x?BillId=51209
    Last edited by Nightmare; 06-21-2014 at 08:45 AM.
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    Regular Member Fallschirmjäger's Avatar
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    Decriminalization of an action that could very well defuse a situation where otherwise deadly force would have to be used?

    Gee, whoever thought that would be a good idea?

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    I also believe that warning-shots are a good idea. The fear of un-aimed shots is hysterical and ignorant - even in aircraft as previously discussed here on OCDO.

    Datum; I have never heard of (pressurized/propane) fuel tanks damaged or penetrated by gun fire, particularly at a rate comparable to air-shot homicide.
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    Warning shots are stupid.

    They always have been and continue to be unlawful in Florida, unless you have justification to actually shoot the person. Even so, you are still legally responsible for every round you fire.

    This law really does not change they way things operate today. Stupid people will still do stupid things when they are not legally justified; they will still get arrested; and if the State can prove beyond a reasonable doubt that they did not act in self-defense, they will still be convicted.

    It's simply what I call an editorial bill: It codifies what actually takes place now, unnecessarily so.

    Another feel-good, do-nothing, impotent law coming out of Tallahassee that everyone could support.

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    ^^ I think I agree.

    Example: Guy sees a burglar climbing out a window with the neighbor's TV. He (the other neighbor is armed). He yells 'stop or I'll shoot'. It's essentially a bluff because a non-psychopath will not shoot a guy just for stealing a TV.

    Now, (at least in Florida) the guy can say that and can fire a fusillade (or two) shots into the ground, air, nearby tree, and scare the BG who will probably drop the TV (breaking it?) and run away.

    But the truth is, the other neighbor should have stayed in his house and called the cops and had his primary role as observer, gotten a license plate, called it in.

    I really can't think of a reasonable situation where shooting a warning shot (and where?) is a worthy idea. Once you deploy you are, in effect, a target (of an arriving LEO, another carrier. The BG is now allowed to produce his firearm and shoot you.

    But it's not clear what will happen. I think it's a bad idea to have a non-violent brandishing incident be a felony. A high percentage of crimes involving deployment of a firearm in defense are stopped without a shot being fired.

    What's really surprising is the people who are allowed to have discretion can't decide if a LAC who pulls to low ready and stops a kidnapping should be arrested or not...if a dog hiding under a bed when they invade the wrong house should be shot. You can't legislate a brain into someone - he has to bring it with him.
    Last edited by Maverick9; 06-21-2014 at 05:55 PM.

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    Quote Originally Posted by Maverick9 View Post
    ^^ I think I agree.

    Example: Guy sees a burglar climbing out a window with the neighbor's TV. He (the other neighbor is armed). He yells 'stop or I'll shoot'. It's essentially a bluff because a non-psychopath will not shoot a guy just for stealing a TV.

    Now, (at least in Florida) the guy can say that and can fire a fusillade (or two) shots into the ground, air, nearby tree, and scare the BG who will probably drop the TV (breaking it?) and run away.

    But the truth is, the other neighbor should have stayed in his house and called the cops and had his primary role as observer, gotten a license plate, called it in.

    I really can't think of a reasonable situation where shooting a warning shot (and where?) is a worthy idea. Once you deploy you are, in effect, a target (of an arriving LEO, another carrier. The BG is now allowed to produce his firearm and shoot you.

    But it's not clear what will happen. I think it's a bad idea to have a non-violent brandishing incident be a felony. A high percentage of crimes involving deployment of a firearm in defense are stopped without a shot being fired.

    What's really surprising is the people who are allowed to have discretion can't decide if a LAC who pulls to low ready and stops a kidnapping should be arrested or not...if a dog hiding under a bed when they invade the wrong house should be shot. You can't legislate a brain into someone - he has to bring it with him.
    Now, (at least in Florida) the guy can say that and can fire a fusillade (or two) shots into the ground, air, nearby tree, and scare the BG who will probably drop the TV (breaking it?) and run away.
    No he can't...well yeah he could, but that is aggravated assault and will get him a 20 year minimum mandatory prison sentence when convicted.
    Last edited by notalawyer; 06-21-2014 at 07:52 PM.

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by Maverick9 View Post
    ^^ I think I agree.

    I really can't think of a reasonable situation where shooting a warning shot (and where?) is a worthy idea. Once you deploy you are, in effect, a target (of an arriving LEO, another carrier. The BG is now allowed to produce his firearm and shoot you.
    ^^ I think you may want to become just a bit more familiar with the law 'cause that just ain't how things work.

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    Quote Originally Posted by notalawyer View Post
    Warning shots are stupid.

    They always have been and continue to be unlawful in Florida, unless you have justification to actually shoot the person. Even so, you are still legally responsible for every round you fire.

    This law really does not change they way things operate today. Stupid people will still do stupid things when they are not legally justified; they will still get arrested; and if the State can prove beyond a reasonable doubt that they did not act in self-defense, they will still be convicted.

    It's simply what I call an editorial bill: It codifies what actually takes place now, unnecessarily so.

    Another feel-good, do-nothing, impotent law coming out of Tallahassee that everyone could support.
    Forget the tripe that has been reported by uninformed reporters. This bill was crafted in Direct response to current Florida case law in order to correct a problem. See the Bretherick case currently before the Florida Supreme Court. It perfectly illustrates a defensive threat of force that was completely justifiable but resulted in the prosecution of the victim of a criminal attack.

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    Quote Originally Posted by StogieC View Post
    [ ... ] See the Bretherick case currently before the Florida Supreme Court. It perfectly illustrates a defensive threat of force that was completely justifiable but resulted in the prosecution of the victim of a criminal attack.
    District Court of Appeal of Florida,Fifth District.

    Jared BRETHERICK, Appellant, v. STATE Of Florida, Appellee.
    No. 5D12–3840.
    Decided: November 1, 2013
    Although I agree that we are bound by Dennis, in light of the reasoning and result reached in Rodgers and Ultreras, I fully concur in certifying the question to the Florida Supreme Court for resolution.
    http://caselaw.findlaw.com/fl-distri...l/1648284.html
    Last edited by Nightmare; 06-22-2014 at 08:53 AM.
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    OP, as paulH would state ~ the rest of the story...

    the original case occurred around the same time as zimmerman and the woman in question is serving 20 years as her attorney tried to use the same defense as zimmerman ~ self defense against an attacker, in this case, her partner.

    truth of the matter was the woman, in a violent argument w/her partner, left the house into the safe haven garage to 'leave via the family vehicle' but discovered she lacked the keys. so instead of locking her self in the vehicle for protection until LE arrived, she grabbed the firearm from the vehicle and 'reentered' the house and discharged a 'warning shot' in the air towards her husband, oh and possibly her off spring. her attorney tried to use self defense argument in court, but thankfully, IMHO, the jury decided to find her guilty of her crime.

    sorry they threw out the original convection on appeal...

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    Regular Member WalkingWolf's Avatar
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    Was there a law making warning shots illegal in the first place?

    This law seems like a solution to a problem it will create.

    Marissa Alexander endangered her children's lives, she was clearly guilty. Maybe the sentence was harsh but in no means should NYPD behavior be protected by law, IMO.

    Solus, IIRC she also could have exited the garage through a unlocked door.
    Last edited by WalkingWolf; 06-22-2014 at 10:38 AM.
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    "Firing a warning shot at an attacker legal in Florida"

    The incident on my mind during the initial drafting was that of a young man who pointed a gun at an attacker who came charging at him with a crow bar when he got out of his car as the attacker was attempting to break in to his home. The young man was charged with aggravated assault in Volusia county because the prosecutor thought that had he been in sufficient fear of great bodily harm, he would have fired. Since he did not fire, it was "obvious" to the prosecutor that he was not in enough fear to justify the aggravated assault.

    You just can't make this stuff up. So, we wrote a bill to fix it.
    Last edited by StogieC; 06-22-2014 at 11:26 AM. Reason: left out a fact, the crow bar

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    Regular Member WalkingWolf's Avatar
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    Quote Originally Posted by StogieC View Post
    The incident on my mind during the initial drafting was that of a young man who pointed a gun at an attacker who came charging at him when he got out of his car as the attacker was attempting to break in to his home. The young man was charged with aggravated assault in Volusia county because the prosecutor thought that had he been in sufficient fear of great bodily harm, he would have fired. Since he did not fire, it was "obvious" to the prosecutor that he was not in enough fear to justify the aggravated assault.

    You just can't make this stuff up. So, we wrote a bill to fix it.
    Was the young man found guilty? Rogue prosecutors will always find bogus charges to file if they are anti gun. The problem is IF the young man did not have justification and it indeed was assault, a law legalizing a criminal act would be bad.

    Seems Florida just needs to legalize OC, and the bad guys will not need a gun pointed at them to know the potential victim is armed.

    The solution is not adding more gun control laws, but removing bad ones.
    Last edited by WalkingWolf; 06-22-2014 at 11:22 AM.
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    After incurring a lot of legal expenses the charges were finally dropped. Now, under the new law, he can finally have he criminal arrest record expunged without waiting until he is over 30 so that he will be able to get a good job. Employers are usually not too keen on hiring people with an arrest record for aggravated assault with a firearm.

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    Quote Originally Posted by StogieC View Post
    After incurring a lot of legal expenses the charges were finally dropped. Now, under the new law, he can finally have he criminal arrest record expunged without waiting until he is over 30 so that he will be able to get a good job. Employers are usually not too keen on hiring people with an arrest record for aggravated assault with a firearm.
    I am ok with the expunging part, there should never be a record where there are no convictions. But shouldn't that be for all dropped criminal charges? What I see as a possibility is some people off kilter hide by this law using a firearm for intimidation. With current laws a person was already protected when it was a CLEAR case of self defense. This law seems to be intended to be a get out of jail free card for IFFY circumstances.
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    Criminals almost always claim self-defense when they threaten or attack someone. Nothing will ever change that. Before this new law, too many good people were getting in trouble for saving themselves and their families from an attacker. We'll see what the courts do next and go from there.

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    Quote Originally Posted by Arma1911 View Post
    This is the headline of an article posted on MSN.com this morning. The law is in response to a woman who was originally convicted for firing a warning shot at her abusive husband. In the article, the author says that some gun rights supporters are afraid this law may weaken existing pro-self defense laws. I don't know enough about the issue to have an informed opinion, but on the surface it seems like a very good law. I thought I would post the link to the article to see what those who are more informed think. I wonder if similar laws may now make there way to other states?

    http://news.msn.com/us/firing-a-warn...gal-in-florida
    There's a couple problems with it, and a couple reasons to be in favor of it. Which way the balance goes, I don't know.

    As Florida law now stands, you are legally authorized to stand your ground when threatened in a place you have a legal right to be, but cannot use force against someone unless you are in immediate danger. Force must be at least loosely proportionate -- no shooting people for spitting on your shoe. The laws against aggravated assault, terroristic threatening, etc, all have exemptions for self-defense but require that the danger be immediate to qualify for the exemption. The reason people keep getting into trouble is the court doctrine in Florida that if you were in immediate danger, you wouldn't have time for a warning shot.

    As I understand this new law, it would relax the definitions, making drawing a deadly weapon in self-defense lawful against threats, not just immediate danger.

    It wouldn't necessarily have saved Ms Alexander from prison though, despite her conviction being the reason the law was passed. She didn't stand her ground, she advanced into danger and escalated the force levels after escaping from it. If her specific case is an example of what the law allows for, then Florida really has taken a step towards the legalized murder standard that it was falsely denounced for over the Zimmerman/Martin incident.

    Quote Originally Posted by StogieC View Post
    Criminals almost always claim self-defense when they threaten or attack someone. Nothing will ever change that. Before this new law, too many good people were getting in trouble for saving themselves and their families from an attacker. We'll see what the courts do next and go from there.
    The thing is, some of the time those criminals claiming self-defense are right. Self-defense is proportionate to the threat -- you can't shoot someone because he spat on your shoe. While a criminal caught in the act of the crime can't normally claim self-defense, there are situations where one might be able to.

    For example, you accidentally or on purpose shove someone on the street, they shove you back. Proportionate. But what if they drew a gun and opened fire instead? If you shoved them on purpose that's assault, but their response isn't proportionate. Despite being in the wrong, you still have a right to self-defense against their escalation -- when they escalated the force levels, they became the aggressor.

    The real hazard with the new law, as I see it, is people feeling threatened and responding to that threat (real or imagined) with disproportionate force, then opening fire if the other guy doesn't instantly back down. I imagine there will be a spike of road rage incidents in Florida where both sides claim self defense.

    Quote Originally Posted by WalkingWolf View Post
    Was there a law making warning shots illegal in the first place?
    Yes. It's covered by Florida's aggravated assault statute.

    http://www.leg.state.fl.us/Statutes/.../0784.011.html

    http://www.leg.state.fl.us/statutes/.../0784.021.html
    Last edited by Difdi; 06-22-2014 at 04:50 PM.

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    Quote Originally Posted by StogieC View Post
    Forget the tripe that has been reported by uninformed reporters. This bill was crafted in Direct response to current Florida case law in order to correct a problem. See the Bretherick case currently before the Florida Supreme Court. It perfectly illustrates a defensive threat of force that was completely justifiable but resulted in the prosecution of the victim of a criminal attack.
    I NEVER pay attention to reporters on any topic, let alone legal ones.

    Maybe I'm looking at a different Bretherick appellate case, but the facts appear to support his conviction for Aggravated Assault.
    It was not reasonable for the Defendant to believe that it was necessary for him to approach Dunning's truck with a gun drawn in order to defend himself or his family.
    BRETHERICK v. State, Fla: Dist. Court of Appeals, 5th Dist. 2013


    And if I'm missing that mark again, the question certified to the Florida Supreme Court is on the burden of proof issue. Perhaps it might be a more valuable use of time to address that issue statutorily instead of taking the time to codify existing case law?

    Hoping that this new law will actually prevent any arrests or prosecutions by smarmy SA's is naive at best.
    Last edited by notalawyer; 06-22-2014 at 04:51 PM.

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    Just guessing, but I think Florida will see a lot of shots fired and gun pointing during road rage in the future. It all depends on how the judges interpret this statute when it is used as a affirmative defense.

    In SC a judge recently dropped all charges on a man for killing a innocent teen while firing a warning shot. The judge based his decision on SYG.

    http://raniakhalek.com/2013/10/10/so...ed-black-teen/
    Last edited by WalkingWolf; 06-22-2014 at 04:47 PM.
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    Right between the eyes is the best warning shot.

    Right?

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    Quote Originally Posted by Difdi View Post
    There's a couple problems with it, and a couple reasons to be in favor of it. Which way the balance goes, I don't know.

    As Florida law now stands, you are legally authorized to stand your ground when threatened in a place you have a legal right to be, but cannot use force against someone unless you are in immediate danger. Force must be at least loosely proportionate -- no shooting people for spitting on your shoe. The laws against aggravated assault, terroristic threatening, etc, all have exemptions for self-defense but require that the danger be immediate to qualify for the exemption. The reason people keep getting into trouble is the court doctrine in Florida that if you were in immediate danger, you wouldn't have time for a warning shot.

    As I understand this new law, it would relax the definitions, making drawing a deadly weapon in self-defense lawful against threats, not just immediate danger.

    It wouldn't necessarily have saved Ms Alexander from prison though, despite her conviction being the reason the law was passed. She didn't stand her ground, she advanced into danger and escalated the force levels after escaping from it. If her specific case is an example of what the law allows for, then Florida really has taken a step towards the legalized murder standard that it was falsely denounced for over the Zimmerman/Martin incident.



    The thing is, some of the time those criminals claiming self-defense are right. Self-defense is proportionate to the threat -- you can't shoot someone because he spat on your shoe. While a criminal caught in the act of the crime can't normally claim self-defense, there are situations where one might be able to.

    For example, you accidentally or on purpose shove someone on the street, they shove you back. Proportionate. But what if they drew a gun and opened fire instead? If you shoved them on purpose that's assault, but their response isn't proportionate. Despite being in the wrong, you still have a right to self-defense against their escalation -- when they escalated the force levels, they became the aggressor.

    The real hazard with the new law, as I see it, is people feeling threatened and responding to that threat (real or imagined) with disproportionate force, then opening fire if the other guy doesn't instantly back down. I imagine there will be a spike of road rage incidents in Florida where both sides claim self defense.



    Yes. It's covered by Florida's aggravated assault statute.

    http://www.leg.state.fl.us/Statutes/.../0784.011.html

    http://www.leg.state.fl.us/statutes/.../0784.021.html

    As I understand this new law, it would relax the definitions, making drawing a deadly weapon in self-defense lawful against threats, not just immediate danger.
    You, and many others, have the same mistaken belief.
    Before and after this law, one may only threaten to use deadly force if, in fact, the actual use of deadly force would be lawful. Now the decision on whether simply drawing the weapon, or threatening to use it is factually a 'threat to use deadly force' is a subject that ultimately will be left to the finder of fact (jury) to decide, based on the particulars of each and every case.

    New version of the pertinent sections:
    (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.

    (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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.
    The law does not change any of that.
    Last edited by notalawyer; 06-22-2014 at 05:17 PM.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by notalawyer View Post
    I NEVER pay attention to reporters on any topic, let alone legal ones.

    Maybe I'm looking at a different Bretherick appellate case, but the facts appear to support his conviction for Aggravated Assault.BRETHERICK v. State, Fla: Dist. Court of Appeals, 5th Dist. 2013


    And if I'm missing that mark again, the question certified to the Florida Supreme Court is on the burden of proof issue. Perhaps it might be a more valuable use of time to address that issue statutorily instead of taking the time to codify existing case law?

    Hoping that this new law will actually prevent any arrests or prosecutions by smarmy SA's is naive at best.
    There are more facts to the case. I'll post a link later tonight.

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    Quote Originally Posted by StogieC View Post
    There are more facts to the case. I'll post a link later tonight.
    I would appreciate that. The appellate case is the only thing on which I am able to based an opinion.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by notalawyer View Post
    I would appreciate that. The appellate case is the only thing on which I am able to based an opinion.
    Working on another issue tonight. Will post tomorrow.

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