Florida Bills Seek to Restrict Self-Defense Immunity, Protect "Warning Shots," and Limit Mandatory Sentences


Hey folks, Today the Florida House will be voting on HB-4003, which seeks to repeal statute 776.013, “Home protection; use of deadly force; presumption of fear of death or great bodily harm.” This would get rid of "Stand-Your-Ground, as well as certain presumptions of reasonable fear of imminent death or grave bodily harm for the defender in home invasion, carjacking, and kidnapping scenarios.  I wrote extensively on this bill (and it's essentially identical Florida Senate counter part, SB-116), in my post yesterday:  FL Lawmakers Seek to Repeal Stand-Your-Ground AND Ease Home Invasions, Kidnappings & Carjackings.  You can read the actual language of the HB-4003 there, if you like.

There are also two additional bills being advanced through the Florida legislature that would impact self-defense, one for the worse, one (arguably) for the better.

The "bad" bill is Senate bill SB-130, entitled "Use of deadly force."  SB-130 proposes essentially two changes to Florida law.

First, it seeks to modify the existing Florida statutes that govern Neighborhood Watch programs, making essentially identical changes to 30.60 Establishment of neighborhood crime watch programs and to 166.0485 Establishment of neighborhood crime watch programs.  That change would be to require the Florida Department of Law Enforcement (FDLE) to establish a Neighborhood Watch curriculum that would include, among other things, instruction on "conduct that may unreasonably create or escalate a confrontation between a neighborhood watch participant and a person suspected of unlawful activity."  Presumably the curriculum would be written in such a way as to make Zimmerman's exit of his vehicle to observe Martin's path of departure a breach of that instruction--even though Zimmerman did this only in direct response to an explicit request for exactly that information from the police dispatcher.  (See "Myth Busters: Did Zimmerman “chase” Martin against police orders?" for evidence-based proof of this.)  In this way, should the same scenario occur again the prosecution could argue that getting out of the car was a direct violation of the Neighborhood Watch training, and therefore unreasonable on its face.  Because any claim of self-defense must ultimately be based on the conduct of a reasonable and prudent person, such a change in the law could create considerable legal jeopardy for any Neighborhood Watch person who did anything other than freeze in place.

Second, SB-130 seeks to water down the state's self-defense immunity statute, 776.032 "Immunity from criminal prosecution and civil action for justifiable use of force."  Before 776.032, if a defender shot his attacker he was subject to lawsuit by either the attacker or the attacker's surviving family, or for that matter anybody else who may have been injured or damaged somehow as a result of the use of that defensive force (to include, say, an innocent bystander who was struck, or an observer who claims to have suffered emotional harm).  776.032 provides blanket immunity against any civil action based upon a use of force in lawful self-defense.  What the plaintiff's bar would really love, of course, is a return to the good old days where one was at risk of being sued by the person who attacked you.  Correctly believing that would never fly, they are trying to go half-way there.  Under SB-130 the attacker himself, and his immediate family, would still not be able to sue.  But anyone other than the attacker or his immediate family would fall outside the immunity protection.  In the Zimmerman case, for example, perhaps Rachel Jeantel could have sued Zimmerman for the emotional distress she incurred from being on the phone with Trayvon Martin in the moments prior to his death.  Sounds great!

The arguably "good bill" is HB-89. It's relevant portions for our purposes are two-fold.

First, HB-89 seeks to extend immunity from civil and criminal prosecution to cover the defensive display or use of a firearm, to include "Defensively displaying a weapon or firearm, if the person reasonably believes that it is necessary to warn an attacker to prevent or terminate an imminent or actual violent criminal attack, including by the firing of a warning shot." (emphasis added). Obviously, not properly trained gun owner would fire a "warning shot" except in the most unusual of circumstances. Having said that, not everyone in lawful possession of a firearm is lawfully trained, and many have been "taught" via the popular culture of movies and television that "warning shots" are an acceptable use of a firearm. This portion of HB-89 would extend immunity to such acts.

Second, HB-89 seeks to exclude from 775.087 "Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence", Florida's "10-20-Life" mandatory sentencing framework acts of violence that may arguably have been defensive in nature. It is under this framework that Marissa Alexander received a mandatory 20-year sentence for firing what she claims was a warning (but which was not--see The Myth of Marissa Alexander’s “Warning Shot”). Essentially, the "10-20-Life" statute requires a mandatory minimum 10 year sentence if a firearm is displayed in the course of a crime, a mandatory minimum 20-year sentence if that gun is discharged, and a mandatory minimum 25-years to life if a person is killed or injured by the shot. As a result, if a person fires a warning shot in what they believe is lawful self-defense, but a jury concludes doing so was unreasonable, in addition to a brandishing or aggravated assault sentence of perhaps 10 years they'd also be looking at a mandatory minimum of 20 years under the "10-20-Life" statute. HB-89 seeks to prevent this outcome in such situations by requiring that the sentencing court

shall depart downward from the mandatory minimum sentence prescribed in s. 775.087(2), provided that the sentencing or trial court finds the following by a preponderance of the evidence: (a) The defendant did not act in the furtherance of another criminal act; (b) The defendant had established a prima facie case at trial, during any proceeding, by stipulation, or at any stage of the investigation that the act alleged was committed with defensive intent; and

So, that's the gist of SB-130 and HB-89. Hopefully, I've managed to dispel any lack of clarity about those proposed laws.

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition," available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country, with upcoming seminars scheduled for Atlanta GA (11/16), and Epping NH (11/24, at the SigSauer Academy, where Andrew is a Guest Instructor). Click here for reviews of recently completed seminars in Ohio, Virginia, Florida, South Carolina, and elsewhere.

You can follow Andrew on Twitter at @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.