Florida-moves-ahead-with-bill-legalizing-warning shots

[gym]

http://www.foxnews.com/politics/2014/01/09/florida-moves-ahead-with-bill-legalizing-warning-shots/
TALLAHASSEE, Fla. – Florida legislators are pushing ahead with a bill designed to make it clear people can show a gun, or even fire a warning shot, without drawing a lengthy prison sentence.
A Senate committee on Wednesday voted in favor of the bill (SB 488) while a similar version has already moved (HB 89) through a House committee.

The bill would grant the same protections already in place under Florida's controversial "stand your ground" law to people who only threaten to use force


Read more: http://www.myfoxorlando.com/story/24405429/warning-shot-bill-moving-ahead#ixzz2wzIEOC5J

 

[Red Wind]

Amazing! We might get this controversial law passed and we still can't get Open Carry, which we had until 1987, back. Even with an overwhelmingly top heavy GOP legislature, and perhaps Americas most pro gun Governor,Rick Scott.

It's a puzzler.

 

[P5 Guy]

Pretty curious that shooting a warning shot wins out over open carry.
Marion Hammer had a hand in the open carry failure.

 

[gym]

All of you Floridians, "get on the good foot" with this stuff. Every week I send these folks emails trying to get rid of bad laws and fix the ones that need fixing, we all need to focus and stand together now while we have some leverage in our favor. Please pay attention and sign up for the NRA-ILA alerts.http://www.nraila.org/
This goes for the rest of those who aren't, or haven't been already on top of this. Discussing things with each other is fine, but your thoughts must be made known to those in charge, sign up for alerts, thanks
Gym

 

[Pizzapinochle]

I live in Florida and I am not a huge fan of stand your ground. I like the theory, but the real world application is not always the best. I have similar feelings about this. If a show of force, either through brandishing or a warning shot, will suffice in a situation, I am all in favor of that. But, if this passes it will be very interesting to see how it ends up playing in the world.

-What happens if someone (bystander/otherwise) is inadvertently injured by a "legal" warning shot?

-This law makes it easier (from a legal standpoint) to justify bringing out a gun. Will this make people more likely to introduce a gun into situations that may not require a gun?

Possible outcomes are many.

 

[Pizzapinochle]

Just found the text of the bill, my previous statement may not be accurate.

http://www.myfloridahouse.gov/Secti...ocumentType=Bill&BillNumber=0448&Session=2014

Looks like it takes existing law and adds to it.

Current:

A person is justified in using deadly force and does not have a duty to retreat if:
He or she reasonably believes that using 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; or

New:

A person is justified in using or threatening to use the use of deadly force and does not have a duty to retreat 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; or



So that raises the ST & T question:

If you were under this law, would you ever brandish? It seems like the law should only cover you if you are imminent danger. If the danger is severe enough to justify brandishing, it is severe enough to justify putting a hole in whoever is attacking you.

This is where the TEXT of the law and the perception of the law will differ. If passed, I suspect we will see cases of someone pulling a gun and firing a warning shot in a situation where there was NOT an imminent threat and claim that the newly amended law protected this action. And then a jury would end up getting to decide what the law actually means.

It will be interesting.

 

[Sam1911]

If you were under this law, would you ever brandish? It seems like the law should only cover you if you are imminent danger. If the danger is severe enough to justify brandishing, it is severe enough to justify putting a hole in whoever is attacking you.

In theory, this is just a restatement of the basic idea behind all affirmative defense self-defense cases. In other words, I did something that would be a crime (shooting someone, threatening to shoot them, or even firing a warning shot) but my guilt should be set aside because I was forced to do that thing or I believed I would be killed.

It seems that Florida had a problem with the previous version of the law not making it clear that shooting someone was not the only act, the guilt for which would be set aside due an articulable need for self-defense. This makes it clear that brandishing and even firing a shot that does not strike the attacker, could be justified if circumstances made those acts seem necessary.

As always, these things will remain rebuttable: if the evidence shows that you really were not in realistic fear for your life, you can still be convicted of a crime.

 

[Arkansas Paul]

-What happens if someone (bystander/otherwise) is inadvertently injured by a "legal" warning shot?

I thought about this as well. I would assume that the fact that something is legal wouldn't relieve a person of the consequences of negligence.
For instance it is legal to conceal carry with a permit, and I do so. However, if I drop my gun in a store and it fires and the projectile hits someone and injurs/kills them, I would still be responsible for my negligence even though the act of carrying it was legal.

I have nothing to back this up, it is just my opinion of how it would likely turn out.

 

[Krusty783]

...

It seems that Florida had a problem with the previous version of the law not making it clear that shooting someone was not the only act, the guilt for which would be set aside due an articulable need for self-defense. This makes it clear that brandishing and even firing a shot that does not strike the attacker, could be justified if circumstances made those acts seem necessary.

...

I don't see a need for allowing warning shots. If presenting a firearm does not de-escalate a situation, a warning shot only presents the possibility of injuring bystanders... Also, people seem to forget that these situations do not play out like some Mexican Stand off in a movie; deadly force situations often arise and are concluded within a few seconds.

Though, I guess this does present some protection for cases of confronting a trespasser or something like that, but I still question the value of warning shots. If someone chooses to assault you or your home with a firearm or other deadly weapon, they have chosen to create a deadly force situation.

Also, how many months until a criminal files suit on the grounds that circumstances dictated that a warning shot should have been made before shooting at them ? I'm not saying I think it's a valid argument, but lawyers like any prospect of earning money...

 

[Sam1911]

I would assume that the fact that something is legal wouldn't relieve a person of the consequences of negligence.

Certainly so. This law does (or should anyway) not say "firing warning shots is legal." What it does is extend the benefit of doubt granted to someone who was in legitimate fear for their life to cover what to the layman might seem redundant: i.e., if shooting and killing someone can be "excused" by dire need, then so can lesser reactions like firing a (for lack of a better word) "warning shot," or brandishing a weapon.

However, any harm that you were to cause to an innocent person still must be dealt with. As we always say, you're responsible for every bullet you fire. I do not know whether Florida applies the "Felony Murder" principle, but that certainly might come into play in such a case.

 

[Sam1911]

I don't see a need for allowing warning shots.

I think the press is (as usual) doing a disservice by misstating what's going on here.

I see this as a bit of "housecleaning" in how FL's self-defense laws work. If I'm understanding this correctly, you might be exonerated for shooting (even killing) someone if you seriously felt your life was in danger, but if you fired into the ground at their feet, or even fired at them and MISSED, the law was not able to grant the same amnesty as if the defender had actually shot the attacker. That's obviously not in the public's best interest, so this bill makes it clear that the same defense applies to less lethal acts (which would normally still be felonies!) when enacted in the face of perceived lethal attack.

It seems this all stems from one test case where a woman was sentenced to 20 years for shooting near someone assaulting her, when she would presumably have been justified in shooting him outright. The case is going back to trial, but this bill is introduced to try to straighten out the legislative muddle that allowed that conviction to happen.

 

[hardknocks!]

Hmmm

Jon Gutmacher is a fl laywer and has a good book to read.
He states in his book as it stands now if you pull a firearm and it stops a threat you could get charged with aggravated assault. (it happens)
And if found guilty this would get you 3 years minimum mandatory.
legislature has made the rules as they believe the judge is inept I guess.
its dicey.
now your a felon!
be careful.

 

[Red Wind]

^ Good Advice. As Ayn Rand stated, in today's America, it is quite easy to inadvertently become a felon.

 

[Sam1911]

It is always wise to understand that when one draws, brandishes, or fires a firearm at another person, the act they are committing is a felony and their life of freedom now rests in the hands of strangers. These are not things to be taken lightly, or EVER presumedto be lawful.

The law recognizes that sometimes these acts are necessary to prevent the injury and death of law-abiding folks, and therefore the defender can be excused from criminal guilt.

It is never "CAN I shoot, now?" or "CAN I brandish, now?" or "CAN I fire a warning shot, now?" But, "I MUST!"

 

[barnbwt]

"It seems that Florida had a problem with the previous version of the law not making it clear that shooting someone was not the only act, the guilt for which would be set aside due an articulable need for self-defense. This makes it clear that brandishing and even firing a shot that does not strike the attacker, could be justified if circumstances made those acts seem necessary."

We see it fairly often in the "am I required to shoot the guy if I draw" threads that pop up from time to time. The way some of the laws are written, it does seem like you can only draw in order to use lethal force, since you can only draw when lethal force is justified. It sounds like they are trying to make it explicit that a firearm may be legally drawn with intent to defend against imminent threat, but that it may be withdrawn if circumstances then dictate that actual shots are not necessary. Or, if initial shots miss the target, but are sufficient to end the conflict (I could see a 'warning shot' lawsuit/charge stemming from missed shots that would have been justifiable had they hit the target).

My personal opinion is that the drawing of a weapon is only justified when its use is as well, so I personally think the second addition to the language is too permissive and unnecessary given the first. You shouldn't draw if you think the threat justifies anything but lethal force, so why be permitted to intentionally threaten without the intent to use it? It can only lead to miscalculation by both sides of the conflict. Guns are a lethal deterrent; no less. To me, good guy or bad guy, you are within your human rights to shoot if the other guy pulls a gun, in defense or offense, since if you do not it will likely cost you your life; an object that trumps any social morality (yes, this includes police interactions, too; you are trusting them and their system utterly with your life when you allow them to approach with guns drawn, solely out of faith that they will do their jobs legally and professionally. That respect/faith is why Joe Blow or an attacker are not given the same deference).

TCB

 

[Bartholomew Roberts]

I live in Florida and I am not a huge fan of stand your ground.

Shocker. The same guy who thinks that language saying the CDC shall not promote gun control is bad law also doesn't like a law saying you don't have to try and retreat first if you have a reasonable fear of immediate death or serious injury.

 

[toiville2feathers]

It struck me funny that it states you won't get a long prison sentence! You can still get convicted and sent to prison, just not for a long time.

 

[Sam1911]

My personal opinion is that the drawing of a weapon is only justified when its use is as well, so I personally think the second addition to the language is too permissive and unnecessary given the first.

I've been told by some of our lawyer friends here that some states do define drawing/brandishing as a form of force as distinct from lethal force and so one may brandish a firearm in a very select few instances where actually firing the weapon at the other person would not be excusable under the law.

This seems to be a more than slightly treacherous bit of ground and I'd personally hope to never have to lean on that distinction. But as some have pointed out, we seek endlessly to try and define in exact terms things which have a million possibilities, nuances, and pathways. Anything could happen.

 

[Pizzapinochle]

Another issue that is led to this is the mandatory sentencing laws in florida, part of the "get tough on criminals who use guns" movement. B/c of those laws, the "warning shot" case resulted in a sentence that the judge was bound by law to hand down. I think it was a 20 year sentenc, which everyone thought that even if the shooter was guilty, no one thought the sentence matched the crime.

 

[HexHead]

I can see the press calling this "the shoot first and ask questions later" law. I can also see part deux of a Treyvon Martin type shooting with the victim's family stirring everyone up with "Why didn't he fire a warning shot before killing my sweet little angel just as he was turning his life aroundl?"

I hope this only makes a warning shot optional, but it's a slippery slope to required.

 

[smogmage]

Red Wind, you can actually Open carry in Florida. 790.25 sub sections G-H

 

[Red Wind]

Red Wind, you can actually Open carry in Florida. 790.25 sub sections G-H

Thank you, but I know that by heart. It is extremely limited. Hunting,fishing,camping,some trail walking. Your house, your business. We need all encompassing OC ,as we did before 1988.

 

[MedWheeler]

The media is having a lot if fun with people on both sides of the lawfully-armed issue with this.

I have not found any text in the bill that would, if passed, allow shots to be fired if they are not intended to actually hit any threatening attacker. The intent of the law is simply to stiffen the protections afforded to those who defend themselves with the threatened use of force, but fail to actually use such force.

Generally, self-defensive gun-uses in Florida have been easier to justify if the overall evidence shows that a threat existed and that deadly force was necessary, and that evidence is typically more readily-available if deadly force has actually been employed.

But, as has been the case in prior interpretations of law (in all jurisdictions), the real test is yet to come. Florida law permits the discharge of a firearm on private property (including residential) provided that no projectile crosses any public roadway of right-of-way, and that the shot is not fired in a "negligent" or "reckless" manner.

Will the next so-called "warning shot" so fired be ruled to be in violation of either, or both, criteria? If so, will the affirmative defense apply based on the perceived threat toward the shooter? Or, would the shooter be cleared on the aggravated-assault charge, but still face a "reckless discharge" one?

Or, will the consensus end up becoming that it will be better (even if not legal or advisable) to simply say "I meant to hit him, but I missed!"?

 

[Frank Ettin]

This issues associated with brandishing and threatening the use of force have been dealt with in detail here.

 

[hartcreek]

It is real clear to me that many of the commenters have never been in situations where they have had to draw on anyone.

I have had to twice One instance was in a parking lot where some joker was checking out my truck to see what he could steal. I had tools in the back and in the cab where other guns. Brandishing was all it took to get this person away from my vehicle.

The other instance I was at the family cabin cooking dinner and I heard something on the porch. I caught the guy as he walked through the door right under the chin with my 38 derringer with the hammer back. He backed up real fast.....

A warning shot in most instances just gives the accomplice a way to locate you.