The (Warning) Shot Heard Round the State… of Florida

By: Brittany Sullivan

Along with several other states, Florida has been heavily featured in the national news cycle with stories of gun possession, use, abuse, and the resulting legal action. Attempts at adjustment to Florida’s gun control laws have been made in recent years, with the Stand Your Ground lawbeing on the table for repeal as recently as in 2013. The Stand Your Ground law, which has been met with much controversy, allows people to use force if they have a reasonable fear for their safety (with additional limitations). In the aftermath of the highly publicized death of Trayvon Martin in 2012, citizens called for Florida to alter its laws concerning gun control; ultimately, however, the attempt to repeal the Stand Your Ground law was rejected by the Florida legislature in November 2013.

Attempting a different alteration of Florida gun control laws, legislatures are pushing for a bill (now called the Threatened Use of Force Act) to allow individuals to show their weapon, or even fire a warning shot, without the automatic prison sentence of ten (or more) years mandated by Florida’s 10-20-Life law. Florida’s current legislation demands more legal justification for the threat of force than for actual force, which has resulted in the outrage of many Floridians. Florida’s current self-defense statutes include 776.012 Defense of Persons, 776.013 Home Protection, and 776.031 Defense of Others, and 776.032 Immunity, and an analysis shows that current Florida legislation addresses only the actual use of force against another individual, but does not address the mere threat of the use of such force. As a result of current legislation, an individual who threatens the use of force but does not engage has less legal justification for his actions than if he had used force. Does this not provide an incentive to use force rather than threaten it, setting a dangerous incentive for the public? Why refrain from using force, when doing so carries a lighter sentence than does the threat to use force? Marion Hammer, a lobbyist for the National Rifle Association, expressed a similar sentiment that “[p]rosecutors are using [the 10-20-Life bill] wrongly to prosecute people who, in an act of self-defense or defense of a loved one, threaten to use force because they really don’t want to shoot somebody.”

On January 8, the Threatened Use of Force Act (Senate Bill 448) passed the Senate Criminal Justice Committee by a unanimous vote (5-0). The bill still requires the approval of the Senate Judiciary and Rules Committees before the bill will be put before the entire Florida Senate for a vote. The Florida House version of the bill (House Bill 89) was passed in November 2013. The Senate version made clear that “[i]t is the intent of the Legislature to immunize a person from prosecution who acts in defense of life, home, and property from violent attack or the threat of violent attack by… [d]efensively displaying a weapon or firearm…” or using force if he or she reasonably believes it is necessary. This bill attempts to fill gaps in Florida’s current self-defense legal framework, including the Stand Your Ground law, and has been greeted by support from both parties.

The bill, an excerpt of which is above, serves to allow individuals to display a weapon or to discharge a shot (as a warning) if they feel their life, home or property is threatened. Granting similar protections to Florida’s Stand Your Ground law, it would ensure that those individuals who merely threaten force are immune from Florida’s 10-20-Life law that mandates a minimum sentence of ten years if convicted of a violent felony while in mere possession of a gun. The statute, of course, also carries terms for when a shot is fired, but as the issue-at-hand is that of the threat of force, only the ten-year mandatory sentence is relevant.

This “warning shot bill” came about in response to a slew of cases involving the threat of force in the force of a warning shot. One such case that spurred the warning shot bill was that of Marissa Alexander, a Jacksonville resident who was sentenced to a 20-year prison term for firing a gun near her estranged husband during an argument. Note that Alexander did not shot at her husband, she merely shot near him and was sentenced to twenty years in prison.  An appeals court has since thrown out her conviction and a new trial is scheduled for later this year. In a similar situation is Orville Lee Wollard, a Florida man who is currently serving twenty years after shooting a revolver in a supposed attempt to scare his daughter’s abusive boyfriend.  In Wollard’s case, the judge expressed remorse at having to instate the mandatory minimum sentence of twenty years, saying that were it not for the “minimum mandatory aspect of [Florida law, he] would use [his] discretion and impose some separate sentence, having taken into consideration the circumstances of [the] event.” These cases, just two of many, show the need for Florida to adjust its gun control laws.

The Threatened Use of Force Act is not the first bill to propose such a change to Florida gun control laws, with the increased media attention on Florida and its gun mishaps, this particular bill has gained momentum. The Democrats in Florida still hold a few reservations with regard to the legislation. Sen. Chris Smith (D-Fort Lauderdale) is concerned that the bill may serve to encourage citizens to show their firearms unnecessarily. Sen. Arthenia Joyner (D-Tampa) thinks that rather than change Florida gun laws, legislators should give more discretion to judges. What the senators remain united upon, however, is the belief that individuals threatening use of force should be evaluated upon different standards than they are currently. The most notable change to Florida’s self-defense laws with the passage of the bill would be the replacement of “use of force” with “use or threatened use of force.” Broad terms give judges wider discretion in ruling, as this phrase covers all threatened uses of force, not just a showing of a gun or a warning shot. One point to make clear, however, is that this bill does not authorize the use of warning shots, it merely changes the mandatory sentencing guidelines for committing a felony while possessing a gun.

The bill currently faces two more committees in both the House and the Senate. While some predict the bill will pass, concern exists from individuals like Greg Newburn of Families Against Mandatory Minimums that the passage of the bill will not affect the outcome of future cases. But overall, Florida residents and legislators alike remain hopeful that the Threatened Use of Force Act will serve to adjust Florida law by granting judicial discretion and discouraging the use of actual force.

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