Is An Accidental Shooting A “Use of Deadly Force” under FL Self-Defense Law?
In preparing for my upcoming Law of Self Defense Seminar in Pensacola, Florida—Saturday, September 27, 9AM to 1PM—I came across an interesting case from the 4th District Court of Appeal (DCA), delivered this past November. The full-text of the court decision can be found here: Hosnedl v. State, 126 So. 3d 400 (FL Ct. App. 2013).
At Issue in the Case
At issue in the case was whether if you are involved in a physical confrontation with another person, and you shoot and injure that person by accident, have you “used deadly force” as a matter of law, or can the jury be instructed to also consider whether the accidental shooting might have constituted mere non-deadly force.
The Facts of the Case
Robert Hosnedl (the appellant) was life-long friends with Danielle Williams and her borther. Hosnedl was preparing to host a Christmas party, and Williams’ brother brought over a bottle of liquor as his contribution.
Unfortunately, the liquor was actually the property of Danielle, not of her brother, and she was very upset that it had been taken without her permission. She went to Hosnedl’s home in order to retrieve the bottle. Hosnedl came outside to speak with her, but refused to return the bottle.
Witnesses would testify that Williams had at one point entered the house, began throwing things around, and refused to leave, even though Hosnedl threatened to call the police.
Back outside, Hosnedl claimed to have seen something “shiny” in Williams’ hand (which he later realized were car keys), and this prompted him to pull his pistol from his belt and hold it in his hands. He claimed he had no intention of using the firearm, which he had purchased for the safety of himself and his family.
Gun in hand, Hosnedl tried to physically push Williams off his property, resulting in a shoving match, when the gun discharged once, striking Williams in the arm. He claimed the discharge was accidental, and Williams herself would tell responding officers that she believed this to be the case.
Hosnedl was charged with aggravated assault with a firearm and culpable negligence. At trial the judge charged the jury on deadly-force self-defense, but declined to instruct them on non-deadly self-defense as well as on defense of property (which permits only non-deadly force), on the basis that the discharge of the firearm constituted deadly force as a matter of law.
Hosnedl was found guilty by the jury of the crimes charged.
The Basis for Appeal
Hosnedl appealed his conviction on the basis of the trial judge’s refusal to instruct the jury on non-deadly force self-defense defense of property.
Having been instructed only on deadly-force self-defense, the jury was unable to consider possible lesser crimes on which to convict Hosnedl, such as simple rather than aggravated battery. Also, taking non-deadly force off the table effectively stripped Hosnedl of any defense of property argument, as one may use only non-deadly force in defense of property.
The Appellate Analysis
The appellate court first tackled the issue of contrasting deadly force and non-deadly force:
When determining whether the force used is deadly or non-deadly, the proper focus is on the nature of the force used by the defendant and not the end result. If the type of force used is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. Otherwise the question of whether the force used by a defendant was “deadly” or “non-deadly” should be submitted to the jury (internal quotes and citations omitted).
The appellate court then examined the issue in the context of a warning shot, citing Miller v. State, 613 So. 2d 530 (FL Ct. App. 1993), another interesting case. In that case the defendant had fired a shot at another person, and been convicted of aggravated assault.
The jury had been charged on deadly-force self-defense, but not on non-deadly force self-defense. Miller appealed, arguing that his shot had not been intended to, and in fact did not, strike the victim, but merely was intended as a “warning shot.”
Miller further argued that because a warning shot cannot harm the victim of an assault, it does not constitute deadly force, and therefore it was error for the jury to be instructed on deadly-force self-defense.
The appellate court ruled that:
Firing a firearm in the air, even as a so-called "warning shot," constitutes as a matter of law the use of deadly force, that is, the use of a force likely to cause death or great bodily harm and is not, as urged, the use of force not likely to cause death or great bodily harm. A firearm is, by definition, a deadly weapon which fires projectiles likely to cause death or great bodily harm; whenever it is fired in the vicinity of human beings, as here, there is real danger that the fired projectile may hit someone, even if not aimed at anyone, as such projectiles are quite capable of ricocheting off nearby objects and hitting people in the area. Consequently, no reversible error is presented in the refusal to give a jury instruction on the justifiable use of non-deadly force. At best, the defendant was entitled, if at all, to a jury instruction on the justifiable use of deadly force which was, in fact, given in this case (internal quotes and citations omitted).
Appellate Ruling in Hosnedl
Clearly, shooting with the intent to hit someone constitutes the use of deadly force. And under Miller, firing even a warning shot not intended to hit someone still constitutes the use of deadly force.
But what of a shot fired by accident? According to this unanimous appellate decision in Hosnedl, even an accidental discharge of a firearm in the context of self-defense constitutes the use of deadly force.
Here, appellant did discharge a firearm in the vicinity of other people. The fact that in Miller the discharge was purposeful and in the present case the discharge was accidental does not make the force any less "deadly." It is the discharge of the firearm that makes it deadly force as a matter of law. Only the discharge of a firearm has been held to be deadly force as a matter of law. Further, although there is record evidence that the discharge was accidental, appellant also testified that he drew his firearm, and thus introduced the potential use of deadly force to this escalating situation. Appellant cannot reasonably claim that the trial court erred in not giving the jury instruction on the use of non-deadly force, once appellant drew the firearm and subsequently the firearm discharged, hitting the victim (internal quotes and citations omitted).
Hosnedl’s conviction was affirmed.
P.S. Did I mention that I'm having a Law of Self Defense Seminar in Pensacola on Saturday, September 27? :-)