VIDEO: On "Warning Shot" Bill, Addresses Verbal Defensive Threats, Marissa Alexander Scenarios
This past week the Florida Senate Criminal Justice Committee voted 5-0 to advance SB 448, commonly referred to as the “warning shot” bill. I address the substance of this bill (and its House counterpart, HB 89) in some detail over at legal insurrection: Florida “Warning Shot” Bill Advances.) Notably, every speaker before the committee was supportive of the bill; Bill Cervone, representing State Prosecutors, was ambivalent about the bill itself, but supportive of the bill's goal of excluding acts of self-defense from the "10-20-Life" mandatory minimum sentencing statute. So far I've posted up rough transcripts and video of:
In this post I'm highlighting the testimony of State Representative Combee, the sponsor of the House equivalent bill, HB 89. Combee was present to answer questions from committee members, and he received two substantive questions. The first dealt with the question of whether a merely verbal threat of defensive force could be grounds for an aggravated assault charge, and the second (from the only Democratic member present) sought to clarify how the "warning shot" bill might have applied in the Marissa Alexander case.
Later in the day, Rep. Combee returned to the podioum to respond to just-made remarks by a representative of the Florida state prosecutors, who took umbrage at the negative manner in which state prosecutors were being characterized at the hearing.
With that overview, here's my (rough) transcript and the actual video for each of those segments:
The first substantive question came from Senator Dean, who wanted clarification on whether this SB 448/HB 89 did anything that might cause a mere verbal warning of deadly defensive force to be considered grounds for an aggravated assault charge.
Sen. Dean: In reference about the notifying a person in the process of threatening, to me, if a person were to step forward and say, "I am armed", I don’t think that’s a threat, that’s a personal notification that you are going to defend yourself, OK? I just want to make sure that there’s no agg assault reference in this part that if a person has a permit, whatever, to tell a person "I am armed", that is not a threat, that’s a position that you’re notifying a person, "don’t mess with me". Is that covered?
Rep. Combee: I’m going to have to look to my . . . my guys are saying there’s nothing in there that would, trying to figure out exactly what you’re asking.
Sen. Dean: I’ll go back again, should an individual engage in this type of presumption, activity, and says to whomever, "I am armed", is that considered a threat, is that included in the protection in this thing.
Rep. Combee: It’s certainly my intent and I think it’s the intent of the bill.
Sen. Evers: Representative Dean, I’m going to ask Connie, because she’s staff, she worked on this bill. Connie, do you think that’s covered in this bill.
Connie: I think we need to look at definition of aggravated assault to get the answer to that question. To have a simple assault you have to have an intentional unlawful threat by word or act t o do violence to somebody, plus the apparent ability to carry out that threat. So, it seems to me from a strictly definitional legal perspective that if you don’t show you’re gun or give them, the victim, a reason to think that you could carry out a verbal threat, I think you’re ok. Furthermore, I don’t think, well of course, this may be common sense, but I don’t think uttering the phrase you just said constitutes an assault.
Rep. Combee: Our interest, my interest, I think the interest of many others was with respect to defensive display or worst case the firing of a shot, but I would think if I say I’ve got a gun and I’d be happy to show it to you, would be essentially the same as displaying. What we’re trying to do is protect people who are putting people on notice, "I’m armed, don’t mess with me, leave me alone, back off". That’s the whole idea. Make sure that those people who do feel threatened in that situation aren’t prosecution under 10-20-Life as some, it appears to me, have been.
The next substantive question came from Senator Gibson, the only Democrat committee member present (the 7-member committee contains two Democrat members, but one was absent, as was one of the Republican members.
Sen. Gibson: Thank you , Mr. Chairman. So, I need some clarification, I’m sure you’ve heard of the case in Jacksonville where the young lady went to the garage, came back, and fired a warning shot—according to her. So, the way you explained it it sounds as if she would have already had to have a gun on her person and said “I have a gun,” and fired a shot, and then she wouldn’t be subject to minimum mandatory. Is that what you’re saying?
Rep. Combee: I know certain facts about the Marissa Alexander case, I’m not an authority of the case. Sometimes we get what are versions of the truth, I understand that. I don’t know, and it would take somebody with greater legal background to answer your question. I cannot answer that question for you.
What I’m trying to do with this bill, and I think what the Senator is trying to do , is to prevent the situations, at least how I understand it with Marissa Alexander. Now, does that mean she couldn’t go to the garage and come back in , does that mean she can’t go to her car and try to return to her home, I can’t answer that question.
What I’m trying to do with the bill, and Senator Evers can certainly speak for himself, is to make sure that people who get in a bad situation and make the decision, a good decision or bad decision, to fire a warning shot, aren’t prosecuted under the 10-20-Life statute and subject to a minimum of 20 years in prison. I can’t specifically answer your question with regard to Marissa Alexander and her case.
Sen. Gibson: I’m not trying to delve so much into the Marissa Alexander case, I’m trying to understand whether or not you have to already be in possession of the firearm, which sounded like where you were going to, that you already have it on your person in order to qualify for a non-mandatory minimum. That’s what I’m trying to get to.
Sen. Evers: The way I feel about it, Senator Gibson, if you needed to go get that gun in order to protect your life because you were going to protect someone else’s wife, whether it be a child or someone else, to rescue them from a situation, I think that’s permissible under this bill.
Sen. Gibson: OK, thank you.
Sen Evers: But those are questions I would think the state’s attorneys could take and give us a definition on how they feel, and could probably answer Sen Deans questions about that, how they feel their state attorneys are going to react to that in those situations, and if it’s not the right answer, well, we’ll have them on record. And if it’s not the right answer we’ll change the bill. That’s the easy way to handle that.
Representative Combee would speak again later in the hearing, in response to comments just made by Bill Sabone, a Florida State Prosecutor. Prosecutor Sabone decided to speak at the very last moment, primarily it seems to object to the dominant tone at the meeting that Florida prosecutors were running roughshod over justice and sending innocent people to prison for 20 years. His comments and perspective are well worth hearing (despite the somewhat whiny and defensive tone with which they were delivered), and I’ll have them posted up separately as soon as possible.
In any case, Rep. Combee then felt compelled to make an impromptu return to the podium to make a brief response:
Rep. Combee: Thank you Mr. Chairman, thank you Senators, Committee members for allowing me to speak again.
And with all due respect to State Attorneys all over the state of Florida, mine is a great friend of mine, I think the world of him. We have a case in Polk county, one which was mentioned by Greg, where you have a guy as far as I know had no arrest record ever, he’s serving a 20-year prison sentence because he fired a gun in his home.
Regardless of what the state attorney spokesman said, there are people in our prison in the state of Florida right now serving 20 year sentences, and some lesser sentences, who have never shot anybody, never stabbed anybody, never hit anybody with a baseball bat or tried to run over them with a car. They are serving 20-year prison sentences. So he can stand up and say whatever he wants to say, but you can’t argue with that.
It’s like, when did this start making sense that we pout people in prison for 20 years who have not physically harmed anybody? There’s a problem here, there’s a conflict between 10-20-Llife and Stand-Your-Ground, the Governor’s task force recognized that and they made a recommendation to the legislature that we do something about it, that we address that conflict.
That’s what you all are doing here today, and that’s what we’re doing with HB 89.
Thank you very much.
Keep your eyes right here, folks, for more videos and rough transcripts from this week's Florida Senat "warning shot" bill hearings. There's more good stuff to come!
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.
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Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others.