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

[Pizzapinochle]

http://news.wjct.org/post/what-exactly-does-warning-shot-bill-allow

That has some of the transcript and a link to the interview I heard.

Some highlights:
Sullivan said calling the proposal the "Warning Shot Bill" is somewhat of a misnomer as the bill does not legalize the firing of warning shots.

"The only time you could fire a warning shot is when you would already have the right to fire a lethal shot," Sullivan explained, noting that the bill does not allow the threat of lethal force to protect property.


And....


The bill now being considered would allow Stand Your Ground to be applied to warning shots. As the law currently stands, warning shots are charged as aggravated assault, which carries a mandatory minimum 20 year sentence upon conviction. The second key component of the bill deals with those mandatory sentences.

"It says, if a judge finds that you had a good faith belief that a warning shot was necessary, but you were wrong, and you're convicted, we don't have to put you in 10-20-life," Sullivan said.

"The judge can use discretion to use the sentencing guidelines that are used for somebody who assaults somebody with a knife, and doesn't have to put somebody in jail for the full 20 years."

 

[hso]

So, while the intent is to remove the mandatory sentencing requirement it puts the sentencing discretion into the hands of a judge is use of deadly force was justified and not used? Sounds like a good approach, "coulda shot them, didn't, but wanted to warn them that they'd get shot if they came any closer".

 

[Pizzapinochle]

So, while the intent is to remove the mandatory sentencing requirement it puts the sentencing discretion into the hands of a judge is use of deadly force was justified and not used? Sounds like a good approach, "coulda shot them, didn't, but wanted to warn them that they'd get shot if they came any closer".

Not quite how i read it HSO.

The question of "was deadly force justified?" is determined by the jury.

If the jury says "NO, not justified," the judge answers a question:

Did the shooter have a good faith belief that the warning shot was necessary?

If the answer is YES, then the judge can reduce the sentence, there is no requirement for a 20 year sentence. Shooter is still guilty and gets sentenced, but no mandate of 20 years.

 

[hso]

Ohhh, I understand you'd still get sentenced if convicted by the jury, but the judge has a range of options from time served to max as opposed to the mandatory maximum for sentencing. That would appear to make for a closer correlation between justice with the law.

 

[Pizzapinochle]

Yup, that is how i understand it.

I have heard mention of quite a few cases of ppl sentenced to 20 years when no one really thought it was justice.

Some see it as the first step in weakening the mandatory sentencing for firearms crimes.

Seems pretty reasonable to me.

 

[ericbc7]

Honest discussions of self defense used to say its "better to kill an intruder than wound him". Unfortunately this might still hold true. It is crazy that some woman, afraid for her life, can't retrieve a gun and threaten an intruder without getting the same protections she would have if she shot him in the head.

 

[Frank Ettin]

Honest discussions of self defense used to say its "better to kill an intruder than wound him". Unfortunately this might still hold true. It is crazy that some woman, afraid for her life, can't retrieve a gun and threaten an intruder without getting the same protections she would have if she shot him in the head.

You don't understand the Alexander case. She didn't get a gun to defender herself against an intruder. The person she shot at was not an intruder. It was his home. If there anyone was an intruder it was she.

If she had shot him in the head, she would have gone to prison for murder.

 

[Pizzapinochle]

You don't understand the Alexander case. She didn't get a gun to defender herself against an intruder. The person she shot at was not an intruder. It was his home. If there anyone was an intruder it was she.

If she had shot him in the head, she would have gone to prison for murder.

That is a bit of an over simplification Frank.

The man was her husband, that has waffled between admitting being abusive and claiming to not be abusive.

If I understand correctly, the house was still jointly owned by both, so it was THEIR house, not his house.

if she had shot him in the head, she could have said "this man, who is bigger and stronger than me AND has beaten me in the past, came at me. I was in fear of my life and stood my ground."

No witnesses to contradict and a history of violence could establish that her fear of attack was reasonable.

Not trying to predict what would have happened, but without him telling his side of the story her case would look a lot better.

Also, i suppose this thread is not to discuss details of the case. Suffice to say, it is NOT a clear cut case either way.

 

[Frank Ettin]

...The man was her husband, that has waffled between admitting being abusive and claiming to not be abusive.

If I understand correctly, the house was still jointly owned by both, so it was THEIR house, not his house...

While they were married, they were estranged. She had not lived in that house for some two months before the incident.

...if she had shot him in the head, she could have said "this man, who is bigger and stronger than me AND has beaten me in the past, came at me. I was in fear of my life and stood my ground."...

She and Gray had a verbal altercation. She then left the house and went to her car. Instead of leaving and going back to wherever she had been calling home for the prior two months, she got a gun and went back into the house that had been Gray's home for the previous two months and fired the gun -- missing Gray and his two children.

The judge at her trial did not accept her "Stand-Your-Ground" claim.

That's all discussed here.

 

[Pizzapinochle]

The judge at her trial did accept her "Stand-Your-Ground" claim.

I assume you meant to say did NOT accept her stand your ground claim.

Again, not really too interested in all the details of the case, b/c this thread is about the new law and not this case, but the shooting happened on August 1st. July 31st she stayed the night at the house and made breakfast for the family the morning of August 1st. Hard to argue that she was an "intruder" to a home that she was a part-owner of, married to the resident of, had access to with keys/garage door, and had spent the night in the night before.

Regardless, whatever the final outcome/judgement of that case is, I don't think it is a very good case to associate the new law regarding "warning shots" with and it very clearly is associated with that case here in Florida.

 

[Frank Ettin]

....Again, not really too interested in all the details of the case, b/c this thread is about the new law and not this case, but the shooting happened on August 1st. July 31st she stayed the night at the house and made breakfast for the family the morning of August 1st. Hard to argue that she was an "intruder" to a home that she was a part-owner of, married to the resident of, had access to with keys/garage door, and had spent the night in the night before...

Then why do you belabor the point.

She had been a guest. She left. She came back with a gun.

 

[Pizzapinochle]

Then why do you belabor the point.

Probably the same reason you did.

Anyway....

A lot of gun advocates propose strict/harsh sentencing for crimes that use guns as a more effective approach to reducing gun crimes than other gun control measures.

Florida 10-20-Life is an example of this approach to harsh sentencing. The newly proposed legislation would weaken those sentencing guidelines, giving judges more power to pass down reduced sentences in crimes involving guns.

Curious if most are in favor or opposed to such a change.

 

[Frank Ettin]

...A lot of gun advocates propose strict/harsh sentencing for crimes that use guns as a more effective approach to reducing gun crimes than other gun control measures....

But this thread has not been discussing the Florida sentencing laws.

Now let's get back on topic.

 

[Pizzapinochle]

The sentencing laws are a part of the warning shot bill.

 

[Kleanbore]

Much Ado About---What?

The Senate version of the bill starts with

The Legislature finds that persons have been criminally prosecuted and have been sentenced to mandatory minimum terms of imprisonment pursuant to s. 775.087, Florida Statutes, for threatening to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.

Really? Sounds like a problem with the courts, but if that is really true, though to date no support for that assertion has been offered, it would seem that some kind of clarification is probably needed.

The bill goes on to to state that the threat of deadly force is lawfully justified in circumstances in which the actual use of deadly force would be justified--to wit, under conditions and circumstances in which the defender would have a basis for a reasonable belief that deadly force had been immediately necessary to defend himself or a third person against an imminent threat of death or serious injury, or to prevent a forcible felony. That's the same as in most states. It's just that in most , the justification for a lawful threat of force, if it does not involve a lower threshold than for the use of deadly force (as it does in a few states, is not separately spelled out.

The mandatory penalty issue is addressed as follows: if a suspect has been charged or convicted of threatening the use of deadly force, the sentencing court, should it find that the defendant had had a "good faith belief" that the threat had been justified (and unless other circumstances existed), would not be required to apply the mandatory minimum penalty.

That sounds OK, but the prospect of having a judge rule that the defendant had held such a "good faith belief" after the triers of fact had determined, beyond a reasonable doubt, that the defendant had not had a basis for a reasonable belief, would seem to get, well, curiouser and curiouser. Not that giving the sentencing court more latitude does not usually better serve the interest of justice.

Regarding warning shots--media accounts are replete with assertions that the bill would legalize warning shots in Florida.

Under the existing Florida law, warning shots are defined as deadly force. I haven't checked all jurisdictions, or the case law in all states, but that is rather unusual at best. What the Senate bill would do is amend the law to state that only warning shots fired by police officers or corrections officers constitute deadly force.

I imagine that everyone would agree that a warning shot would comprise a threat of deadly force, and that the threshold of justification would therefore be the same as for the use of deadly force anyway.

There is one other noteworthy change. The bill would amend the criminal and civil immunity section of the law to apply only to liability involving injuries to the persons against whom the threat or use of force had been made.

That provision may have to do with warning shots, or not. I'm not aware of any other states where that clarification has been deemed necessary, though some anti-gun editorials have argued that the existing Florida law improperly protected shooters against civil suits brought by anyone.

There is one instance I know of in which the threat of deadly force actually led to a conviction under circumstances in which the use of deadly force would have been justified, but it didn't happen in Florida. A few years ago, a suspect in Kansas was convicted for several crimes, one of which involve threatening with deadly force. A multifaceted appeal failed, but in a written opinion, a dissenting member of the Kansas Supreme Court pointed out that the way the (recently rewritten) law read, one had to actually use deadly force to be justified in self defense.

Ridiculous, of course, but that's the way the law read, then. In 2010 the law was amended, retroactively.

 

[Pizzapinochle]

Really? Sounds like a problem with the courts, but if that is really true, though to date no support for that assertion has been offered, it would seem that some kind of clarification is probably needed.

No official connection (legislator quotes/in text of bill) that I know of, but I have heard these two cases mentioned as cases that this bill might have changed the outcome on:

Orville Lee Wollard
http://www.theledger.com/article/20090619/news/906195060?p=1&tc=pg&tc=ar

Ronald Thompson
http://www.gainesville.com/article/20120614/ARTICLES/120619789?p=1&tc=pg&tc=ar

BTW: http://www.myfloridahouse.gov/Secti...ocumentType=Bill&BillNumber=0089&Session=2014

Page 4 and the top of page 5 seem to have the bulk of the text about sentencing.

 

[Kleanbore]

The two cases linked in Post 66 certainly are noteworthy with respect to sentencing, but I see nothing in either of them that indicates to me, at least, that a defendant was criminally prosecuted for threatening deadly force under circumstances in which the use of deadly force would have been lawfully justified.

 

[Frank Ettin]

...That sounds OK, but the prospect of having a judge rule that the defendant had held such a "good faith belief" after the triers of fact had determined, beyond a reasonable doubt, that the defendant had not had a basis for a reasonable belief, would seem to get, well, curiouser and curiouser...

Well basically the difference when murder and justifiable homicide is that in the case of the former the actor killed someone intentionally and with malice or ill will; and in the case of the latter, a reasonable person would have concluded that under the circumstances intentional, potentially lethal violence was necessary to prevent otherwise unavoidable, immediate death of grave injury to an innocent.

The middle ground is voluntary manslaughter. One basis for a conviction for the crime of voluntary manslaughter would be that the actor believed that lethal force was necessary in defense, but that belief was not reasonable (although it might have been in good faith). But that's about the nature of the crime committed.

If the crime is some sort of assault with a deadly weapon or aggravated assault, I don't see state of mind (short of meeting the standards for justification and therefore exoneration) necessarily affecting the nature of the crime (unless the criminal definitions distinguish between intentional acts and willful [reckless and wanton] acts); so that becomes a matter of sentencing guidelines. It would be interesting to see how/if Florida deals with sentencing guidelines generally.

 

[Pizzapinochle]

genrally the "warning shot" crimes are tried as aggravated assault.

Kleanbore, you may be right that those cases aren't relevant outside of sentencing guidelines. I think some cases there has been a question about jury instructions clearly stating that a warning ofmlethal force and/or warning shot would be covered under self-defense laws, but I don't have specific citations.

 

[ericbc7]

Lot of good points and I apologize for over simplifying the details. yes residency was not clear but I contend it was mostly irrelevant. She was, from what i heard was not trying to kill him as the intruder, but was trying to scare him off. What i have a problem with is the prosecutor going for a significant sentence in this case. That said, regardless of her intent, why is she getting such significant prosecution in a case that is at best a domestic dispute? Women are nearly always the victims of abuse and we need to err on the side of them in general. If she is some aberration then produce evidence to that end before persuing an attempted murder case.

 

[Pizzapinochle]

What i have a problem with is the prosecutor going for a significant sentence in this case. That said, regardless of her intent, why is she getting such significant prosecution in a case that is at best a domestic dispute?

The prosecutor has no choice on sentencing. Florida has mandatory sentencing guidelines for crimes committed with a firearm. 10 years if you pull a gun in a crime, 20 years if you fire it. She fired a gun in comission of a crime, that is 20 years in florida.

The new legislation, as disussed above, gives judges more power to hand down reduced sentences.

 

[Kleanbore]

Now it's up to the Governor

The bill has passed in the Senate.

 

[Red Wind]

With Governor Rick Scott, it should be a done deal.