This is a response by Florida Carry to the comments of Jon Gutmacher. – by Florida Carry General Counsel Eric Friday
His post can be found at: http://orlandocriminallawyer.blogspot.com/2014/07/an-analysis-of-floridas-alleged-pro-gun.html
Below is his post in its entirety. My responses are in red.
An Analysis of Florida’s Alleged “pro-gun” HB 89 – and the Problems it has Created. Copyright by Jon Gutmacher 2014 – All rights reserved. Point by Point analysis published here under Fair Use.
Although some have called House Bill 89 (now signed into law by the Governor) “history making” legislation – the only thing historic about it is how messed up it is. Since there may be multiple ways the courts will interpret this miserable piece of legislation – I will give you each possible interpretation as we to through it, section-by-section. However, to give credit where credit is due – it was a really great bill before the Legislature started tearing it apart and amending it. However, the section on warning shots was obviously beyond what would have been acceptable, and my guess is that’s what got the ball got rolling in amending it from its original version. Once the amending started – the bill didn’t even resemble the original, and they should have just killed it, and submitted a better thought-out version in the next legislative session. Instead, what resulted had no relationship to anything any intelligent person would want for a law. In fact – the amended bill that finally passed has almost zero good parts, and a ton of really, really bad parts. In analyzing the effect of the new laws brought about by the bill I will start with the language from the actual bill, as passed, in bold italics, and then follow with the possible interpretations:
Section 1: (1)
The legislature finds that persons have been criminally prosecuted and have been sentenced to mandatory minimum terms of imprisonment… 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.
An unfortunate misunderstanding of law, and worse mistake on choice of wording. The main problem with this section is that Florida law, thru case decisions rather than statutory law, already includes threats as the use of “non-deadly force”. See, Stewart v. State, 672 So.2d 865 (Fla. 2DCA 1996); Rivera v. State 871 So.2d 953 (Fla. 3DCA 2004). Thus, there was no need to add it into the statutes in the first place. The other problem is that by using the language “had force actually been used” – will likely be interpreted by the courts as not allowing a threat of force greater than the amount of actual force that could have been used in the same situation, had force been used.
This is a statement of legislative intent. In order to get to this language a court would first have to determine that there was a lack of clarity in the statute. If it decides there is a lack of clarity it would have to look at this section and the legislative history to determine what the legislature was trying to do. Since as the author points out there was already law regarding the difference between displaying a firearm and firing a firearm, the legislature must have meant something new. It is a well-established canon of statutory construction that a law should not be interpreted in a way that makes it meaningless. Numerous examples were provided to the Legislature. A prime example was the firing of a warning shot by an elderly man, in defense of his elderly neighbor, against persons who entered and remained in her house without authorization. Yet the man was sentenced to prison.
This possible interpretation is reinforced by the next legislative statement in the Bill:
The Legislature intends to provide criminal and civil immunity to those who threaten to use force if the threat was made in a manner and under circumstances that would have been immune under chapter 776, Florida Statutes, had force actually been used.
b. Clarify that those who threaten to use force may claim self-defense if the threat was made in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.
That may mean you lose immunity, maybe have to retreat, or both – if you make a threat of force greater than you could actually have used at the time the threat was made. If this is what the courts decide, we’re all in for big trouble – because the law prior to this would be that there is no duty to retreat in a non-deadly force situation [Keith v. State, 614 So.2d 560 (Fla. 1DCA 1993)], and that a threat is lawful self defense to stop or prevent unlawful conduct, as long as it is “reasonable” under the circumstances. See, United States v. Black, 692 F.2d 314 (4th Cir.
1982). The one exception would be where a “warning shot” is involved – as Florida case law has consistently held that a warning shot is the use of “deadly force” – thus – can only be used where there is a reasonable fear of imminent death or great bodily harm, or such appears reasonable and necessary to stop the imminent commission of a forcible felony.
Again this is intent language. Nothing in the substantive part of the statute in any way indicates a duty to retreat for persons not involved in criminal activity.
Section 2:
Section 2 of the legislation is somewhat good, but fell way short of where it needed to go. It eliminated the three year mandatory minimum prison sentence for aggravated assault with a firearm where an individual is convicted of aggravated assault after his or her self-defense claim failed – and that individual was convicted after a trial, or plead guilty. In such situations, if the court makes a finding that the defendant’s actions were committed in a “good faith” belief he or she was acting lawfully – then the court may forego sentencing the individual to the three year mandatory prison sentence. Unfortunately – these circumstances will rarely happen. Here’s the statutory wording – and then my fuller explanation:
Section 2. Subsection (6) is added to section 775.087, Florida statutes, to read:
775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.— Notwithstanding s. 27.366, the sentencing court shall not impose the mandatory minimum sentence required by subsection (2) or subsection (3) for a conviction for aggravated assault if the court makes written findings that the defendant had a good faith belief that the aggravated assault was justifiable pursuant to chapter 776. The aggravated assault was not committed in the course of committing another criminal offense. The defendant does not pose a threat to public safety. The totality of the circumstances involved in the offense do not justify the imposition of such sentence
The problem here is that a court will rarely make such findings because if the defendant is already convicted – it will normally be “politically incorrect” to find he or she used self defense in “good faith”, or does not pose some kind of “future threat” to society. Moreover, “good faith” is not defined by the Legislature, and there are too many variations of what it might be, or how a Florida appellate court will eventually define it. Personally – to me “good faith” is a subjectively honest, but mistaken belief that the force or threats used were necessary to prevent or stop what the defender perceived as unlawful conduct of another. So – while there is always a chance this might help an occasional defendant – the section will likely leave most folks out of luck – even if subjective good faith was used.
This is the first substantive change in the statute. First let’s address that no Court will make such findings. Several judges have stated in open court in minimum mandatory cases that the minimum sentence is not appropriate for that case but that the judge is bound by the statute.
When one judge challenged the law, he was overturned by the trial court. When the Judge insisted that the prosecutor Angela Corey, be personally present for the imposition of sentence she was demanding, she had the Judge recused from the case.
Good faith is repeatedly used in Florida law to deal with liability for things ranging from mandatory reporting requirements, or assisting the elderly. It is also already applied in 3 different statutes in Chapter 776, the chapter that deals with justifiable use of force. It is not a standard unfamiliar to the Florida Courts, that there will be a struggle how to apply. This revives a long established doctrine that had been repealed by the legislature known as imperfect self-defense. In cases where a person in good faith mistakenly believed their conduct justified, they will no longer be subjected to the minimum mandatory even if they are convicted.
Section 3 is where the Legislature probably totally screwed every gun owner in Florida – quite by accident. The wording is terrible, the implications and possible interpretations worse. And – worst of all – the hated “retreat rule” is back in certain situations because of it – which I will explain in the appropriate subsection. While I tried to warn the Legislature and the supporters of the bill of these dangers – I was rewarded either by being totally ignored, or directly insulted, and told to butt out! So, let’s take a look at the new section – and see if you can guess the problem before I show you my analysis:
SECTION 3 – 776.012
1. A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
Analysis: Well . . . it says you can only use or threaten to use “non-deadly force” to the same extent you believe it is necessary to defend against another’s imminent use of “unlawful force”. The literal translation is that you can only threaten to use “non-deadly force” in a non-deadly force situation. If instead, you happen to threaten the use of deadly force – you’ve probably lost any immunity you might otherwise have had under the self defense statutes, you may just have used “excessive force” as a matter of law, and you might just have to retreat first before you could legally “threaten” using any type of self defense beyond the degree of force you could actually had used, if you had used force!
Pretty awful, huh?
There are two problems with this analysis. First the whole statute must be read in pari materia, or as a whole. Second the statute should not be read in a redundant manner, or to lead to an absurd result, or in a way that makes a portion of the statute unnecessary. Sec. 1 deals with cases where non-deadly force is authorized. Sec.2, below deals with cases where deadly force is authorized. Identical language was added to both sections. IF as the author claims this is confusing or unclear in some way then we must look to the legislative intent and the policy statements at the beginning of the bill.
No person can argue with a straight face that the Legislature’s intent in this bill was to restrict the use of force, or threat of force. Clearly the entire bill is designed to grant additional protections to those who are required to defend themselves. The interpretation the author is concerned about would violate that clear legislative intent.
Repeatedly, prior to this law, there were persons who displayed a firearm in self-defense. The response of prosecutor’s and courts was that the display of the firearm escalated the situation, or was not reasonable. Was there a better way to word this statute? Yes. Does it leave us any worse off? No. Will we try to amend it if it proves ineffective? Absolutely!
Moreover, the statute requires your use of any threat to be premised not just on another person’s unlawful conduct – but their conduct must be aimed to use unlawful “force”. Certainly, not every type of crime requires force being used to accomplish it. So – will the courts say you can’t use or even threaten non-deadly force to stop a non-violent felony, or misdemeanor, or will “force” be equated with any type of conduct, whatsoever? Based on current Florida decisional law — I’ll vote for the last interpretation. However, if they chose the first one — your permitted language will be restricted even if it would otherwise have been totally reasonable under former law!
The objected to language, that their conduct must be “aimed to use unlawful force” is the language that already existed prior to the amendment. This is not new language, so the current decisional law must remain in effect. If you could use non-deadly force before, you may now use actual non-deadly force, or you may threaten to use force by displaying a firearm.
So . . . what do I think the courts will do in this situation?
Well, I think they will be hard pressed to find that a threat of the use of “deadly force” will be permitted in a situation where only non-deadly force could have been used. The statutory language is too clear. If I’m right in this interpretation – I think a threat of deadly force in a non-deadly force situation will cost you your “immunity” – but otherwise not effect you. And, while it is possible, I think the courts would be hard-pressed to find that a simple threat short of amounting to an “assault” would be “excessive force” if it otherwise seems “reasonable” under the circumstances. To do so would turn a hundred years or more of case law on its head. But, whatever the courts will do – the statute is miserably worded, and needs to be amended in the next legislative session. As usual, I humbly offer my talents to the Legislature or any of the sponsors – for free to help to review or assist in any drafting of any pro-gun legislation. Although, quite frankly – I know the chances of that happening are about the same for the proverbial snowball in Hell.
Here we can agree, that no statute is perfect. If they were much of the work of the Courts and lawyers would be unnecessary. It took several years, and a major revision of the statute just to make the courts understand the concept of secure encasement in a vehicle. I do not expect this to be any different. Is it possible some will still not be protected by the new law? Yes. Florida Carry, Unified Sportsmen of Florida and other organizations worked many hours on this bill along with practitioners who are in the courts every day dealing with these issues.
Unfortunately, with our system of law, sometimes you have to take the best you can get and when the courts screw it up, you go back to the Legislature and show how the language was misinterpreted and what is needed to fix it.
Of course we always welcome constructive criticism, and the assistance of anyone who would like to contribute.
Subsection 3 – part 2
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
OK . . . if you thought any of the previous sections were bad – wait until you see this next subsection (2) of Section 3. Subsection (2) is the true killer of nine years of pro-gun progress in the Florida appellate court system! It has rendered meaningless all the really great recent case law that found that Florida Statute 776.012 was independent of the problems and heavy burdens in Florida Statute 776.013. See, State v. Wonder, 128 So.3d 867 (Fla. 4DCA 2013). It is a testament to how little the sponsors of this bill, its supporters, and the rest of the Legislature understood the law, or the self defense statutes! It is, in one word, just plain: “shameful”, and more so because they’d been warned by me that the language would have that effect, and still totally ignored the warnings. So – what do these changes mean, and what can we expect?
First, it confirms my interpretation that a threat of using deadly force may only be used if the defender has a reasonable belief that such is reasonable and necessary to prevent imminent death or great bodily harm, or prevent or stop the imminent commission of a forcible felony. In other words – since this subsection says you can only use the “threat” of deadly force to stop or prevent deadly force (or a forcible felony) – then it also means that the Legislature really did mean what it said in the earlier subsection: that you can’t threaten deadly force in a non-deadly force situation. A really stupid, senseless piece of drafting that will cause all sorts of problems for anyone involved in a possible self defense situation, or situation where they are trying to prevent a non-violent crime. In essence, the drafters of this law were unable to understand the legal distinction between what constitutes a “threat” vs. what constitutes an “assault” – mixed the two up – were totally oblivious to the fact that if a threat is “reasonable” it should be lawful no matter what – and came up with this total messed up amendment to a statute that was working perfectly fine without it. In other words – they all screwed it up, royally!
The original drafters were eminently clear on the difference between a threat and an assault. Unfortunately the analysis of the Courts and prosecutors, considered every threat of force with a firearm to be an aggravated assault with a minimum mandatory. If you did not have grounds to shoot the person, a display of a firearm would result in a minimum mandatory. It is hoped that this bill will cure that defect. If it does not cure the defect, Florida Carry will bring that before the Legislature and request an amendment. Unfortunately, sometimes the only way the Legislature sees a need to act, is after an adverse court decision.
The next thing this subsection screwed up are situations where the use of deadly force was absolutely needed, and permitted – but will now go back to pre-2005 law, and require retreat.
Yes – you heard me right – retreat! This will occur if you are somewhere you might not be lawfully (e.g. – you’re trespassing at some park after it closes – and somebody tries to rob you at gun point), or if you happen to be involved in some criminal enterprise, no matter how small (e.g. – same scenario as the last – but add smoking a joint, or sitting in a parked car DUI – and somebody tries to rob you, etc.). Under this new version of F.S. 776.012 you must RETREAT before using deadly force (if you could retreat with safety) if either of these situations exist.
That’s right – retreat! No “Stand Your Ground”!
Thus, the most likely interpretation by the courts will be a throw-back to pre-2005 Stand Your Ground, and will result in a situation where anyone claiming immunity and self defense under F.S. 776.012 (or any other section) who uses, or even threatens the use of deadly force, and is not in a “place where they have a right to be”, or are engaged in any type of behavior that could be considered “criminal” – must first retreat – if they can do so in safety – BEFORE making either a threat of using deadly force, or before using actual deadly force. And while the courts will likely agree that extending this situation to a mere threat of using deadly force is just plain stupid – the courts will also likely say that is clearly what the wording in the statute requires, and if the Legislature doesn’t like the interpretation – then the Legislature should revise the statute! In other words – stupid wins! Exactly what I tried to warn everyone about when they started amending the original bill!
The amendment does require persons engaged in “criminal” conduct to retreat. There has been a split of authority. That the Supreme Court may address soon, but has not yet considered. One DCA has held that a person acting in self-defense under Sec. 776.012 could stand their ground even if engaged in the unlawful activity prohibited by Sec. 776.013. Other DCAs have said that not only can you not stand your ground if you are engaged in unlawful activity, but have no right to immunity. Under this amendment, if you are engaged in criminal activity you will now have a duty to retreat. Arguably, and according to the Governor’s task force that examined the law, the legislature has always had the goal of reserving no duty to retreat for law abiding citizens, not drug deals gone bad.
To briefly address the DUI argument. Is the State going to argue you could have driven off? Are they going to argue you have to endanger others by actually driving drunk, rather than defend yourself from a criminal attacker? Angela Corey might, but I would love to try that case.
Section 4 of the new legislation addresses Florida Statute 776.013 which generally deals with protection of home, residence, or occupied conveyances. Here’s Subsection (1) of that particular section:
Section 4. Subsections (1), (2), and (3) of section 776.013, Florida Statutes, are amended to read: 776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:
(a)The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
The revision doesn’t change this part of F.S. 776.013 all that much except for the inclusion of “threats”. But, since this section deals solely with the use and threats of deadly force, and presumptions attached to them, it is significant that the language used in subsection (1) is very different than that used in F.S. 776.012, and had it been used in 776.012 would have been substantially more favorable to a defender using only a “threat” – as the statutory wording “when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm” allows just about any type of threat – because a threat – even one coupled with an aggressive display of a firearm – cannot be intended or likely to do much of anything other than frighten the other person – and certainly cannot “cause death or great bodily harm”, unless it is a warning shot.
Subsection (2) of Section 4 of the legislation also addresses only F.S. 776.013, and makes few changes over the previous statute other than the inclusion of “threats”, and changing the wording “unlawful activities” to “criminal activities”. The revision and amended subsection does not, in my opinion, constitute a significant change. However, it is clear that by eliminating the language requiring the defender to be “in a place where they have a right to be”, and also to not be engaged in any “unlawful or criminal activity”, and instead citing to the new sections in F.S. 776.012 that have those exact requirements – it makes crystal clear that the requirements apply to both sections equally, despite the huge problems this creates for defenders who previously could use F.S. 776.012 without these additional onerous requirements.
The change from unlawful conduct to criminal conduct is a significant change. This language was actually requested by the Governor’s task force, and was universally requested by all parties to make clear that a person selling Avon from her house without a business license could still stand her ground. The worst fear of the legislature and the organizations supporting stand your ground is a bad guy getting away by using stand your ground even when engaged in criminal activity. The Legislature wanted to make sure that did not happen.
Here’s the subsection:
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; or
(c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or
(d)The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is attacked in his or her dwelling, residence, or vehicle has no duty to retreat and has the right to stand his or her ground and use or threaten to use force, including deadly force, if he or she uses or threatens to use force, in accordance with s.
776.012(1) or (2) or s. 776.031(1) or (2).
Section 5 of the revision deals with the defense of property other than a dwelling, as well as personal property, and is basically unchanged in wording except for the inclusion permitting “threats”, and the heading was corrected to reflect that the section deals with defense of property vs. defense of other persons. Here’s the actual wording:
Section 5. Section 776.031, Florida Statutes, is amended to read:
776.031 Use or threatened use of force in defense of property others.—
(1) A person is justified in using or threatening to use the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
So, what did the amendments to these subsections change by adding “threatening”? Well . . . it means exactly what it says:
1. You can only threaten to use deadly force, or actually use deadly force if you reasonably believe such conduct is necessary to stop or prevent a forcible felony!
2. However, if you are not “at a place where you have a right to be” – just like the revisions to 776.012 and 776.013 – you need to retreat first before either using a threat of deadly force . . . or the actual use of deadly force.
There is nothing in any of the amended language that requires a person to retreat prior to threatening the use of force or actually using force. It would be absurd to argue that after the great lengths the legislature has gone to throughout Chapter 776, to void any duty to retreat for law abiding citizens not engaged in criminal activity, which it impliedly created a duty to retreat.
Of course if you are at a place where you do not have a right to be, why would you be entitled to use deadly force if you can retreat first? Again this recommendation came from the task force that requested clarity on what type of conduct would void no duty to retreat and wanted to make clear that the law was intended to protect law abiding citizens, not criminals.
Subsection 6 concerns F.S. 776.032, which is the section of the law that grants “immunity” for persons using self defense pursuant to previous sections of the C. 776, Florida Statutes. The amendment adds “threats” into the immunity scheme (even though prior case law already had accomplished that), but otherwise leaves this section relatively unchanged. However, it is important to remember that recent case law has clarified that each of these prior sections work independent of each other. In other words – in a courtroom scenario you can pick and chose between the ones you want to use, or don’t want to use. That used to be important because F.S. 776.012 was much easier to use in a defense than F.S. 776.013 except where the defense pertained to a dwelling, residence, or occupied conveyance. However, those distinctions have now been wiped away by this new, poorly thought-out legislation. Here is the revision:
The clarifying case law that allowed each section to work independently was opposed by the legislature to the extent that it allowed criminals to claim the protection of no duty to retreat. All bills are a product of compromise. Similar language was contained in other bills that would have gutted SYG. This was the better bill.
Section 6. Subsections (1) and (2) of section 776.032, 218 Florida Statutes, are amended to read:
776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
Section 7 is another section that will likely cause infinite problems far beyond what anyone envisioned, or even dreamed about. While you wouldn’t think that adding “threats” to the section would change much – it has opened up a can of worms – which only future court decisions will determine. I have no idea where it will lead, other than it can cause horrible changes in the law – or – maybe not any. Here’s the section, followed by my analysis:
Section 7. Subsection (2) of section 776.041, Florida Statutes, is amended to read: 776.041 Use or threatened use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who: (2) Initially provokes the use or threatened use of force against himself or herself, unless:
(a) Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.
The problem with the section has always been that the term “aggressor” has never been defined in the statutes, and case law tends to hold that before you become an aggressor you must either be performing an unlawful action (ie: trespass, theft, breach of the peace, etc.), or if the threats are merely by words, then words or actions alone short of creating a reasonable fear in another of imminent violence (ie: an “assault”) do not make you the “aggressor”.
However, by adding the words “the threatened use of force” to the mix – the Legislature just turned the case law on its head – because now, words alone that “threaten” force – even if the threat is conditional and not imminent – can make you the aggressor! Thus, a situation involving an argument where one individual says to the other: “If you come any closer, I will hit you” – has now made the individual making the verbal threat to use force – the “aggressor” – even if the other guy started everything, and wouldn’t lay off, that is: so long as the other guy didn’t make a threat of using force, first. Again – just plain stupid. And again, a total failure of the Legislature and supporters of the amended bill to understand what the implications of the wording would legally mean.
I will not say this is impossible, because certain prosecutors become very inventive when necessary, but I think it is highly unlikely. Again the clear intent of the bill and the new language is additional protections for law abiding citizens, not less.
Section 8 of the new law concerns F.S. 776.051, which pertains to use of force in resisting arrest. Although it adds “threats” into what a citizen can’t do – my opinion is that it makes no substantive change in the law, hence I am eliminating it from further discussion in this article.
Subsection 9 is unchanged, and I also therefore eliminate it from discussion. However, law enforcement should note that since the wording of the this subsection clearly says that “The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm” constitutes “deadly force” – the use of any type of non-lethal ammo fired from a firearm – will always be the use of deadly force, no matter what.
This statement is completely untrue, and shows the overall problem with the flawed analysis of the author. The author apparently only read the bill language without looking at what sections were new versus existing, and ignored unmodified sections of the statute which were no amended and therefore not contained in the bill language. For example the author looked only at sub (1) of
Sec. 776.06 which is amended by subsection 9 of the bill. Had he gone back and read the statute he would have seen the following language which was untouched and remains in the bill.
(2)(a) The term “deadly force” does not include the discharge of a firearm by a law enforcement officer or correctional officer during and within the scope of his or her official duties which is loaded with a less-lethal munition. As used in this subsection, the term “less-lethal munition” means a projectile that is designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person’s body.
(b) A law enforcement officer or a correctional officer is not liable in any civil or criminal action arising out of the use of any less-lethal munition in good faith during and within the scope of his or her official duties.
And please note once again that good faith is a legal standard already very familiar to the legislature.
Section 10 of the legislation creates F.S. 776.09 to facilitate an expunction of record where a case was dropped by the State Attorney or Statewide Prosecutor, or dismissed by the court. Subsection (1) applies to those rare instances where the State actually drops a charge on the basis of self defense vs. offering a plea bargain to a lesser charge. If so, this section requires such a finding be documented in writing in the prosecutor’s files. As a practical matter this will rarely happen as the State normally would offer a plea bargain to a significantly lesser charge, or just say they didn’t have “enough evidence” to go forward with confidence, rather than concede self defense. Rarely, will they ever admit the initial arrest and/or prosecution was just plain wrong!
In forty years of practice I only saw that happen once. So, for the most part – this section is just pure illusion based the Legislature’s ignorance on how things really work in the criminal justice system.
Again, the legislature showed its intent to do exactly what the author suggests, however the FSA and the State Attorneys are a powerful force in Tallahassee. When this language was negotiated there was no doubt that the prosecutors would abuse and misuse this statute and fail to make the necessary findings. However the legislature is very good about correcting such problems. As soon as it can be demonstrated that the SAOs are avoiding opperation of this section we will be back asking the legislature to clarify what we could not get this time.
Subsection (2) applies to where the court dismisses a case based upon a finding that a defendant used lawful self defense. In other words – where the defendant wins a “Stand Your Ground” pre-trial hearing. In such a situation, the judge must make a written finding that the dismissal was due to the use of lawful self defense, and that finding is kept in the court records.
Subsection (3) states that if either of the predicates in the previous subsections occur, then the defendant may apply for an expunction. However, if you’re really sharp, what you will find lacking in any of these sections is what happens if a case goes to trial and the jury finds the defendant not guilty – where the defense was self defense? In such an instance – you’re out of luck! No expunction! The Legislature doesn’t trust juries, and made that clear in previous versions of the expunction statute. Although a dismissal by the State or Court will allow an expunction – a “not guilty” verdict by a jury of your peers does not! The Legislature doesn’t give a jury verdict the same value. So much for the Constitution! Thanks a lot!
Please see the previous statement. We have lost our rights by increments, we will not get them back overnight.
Section 11 amends F.S. 943.0585, and adds a subsection (5) to that statute which then sets forth the procedures for obtaining the expunction permitted in the previous Section 10. Since the procedures involved are not within the purview of this article, I will leave that for someone else to describe.
So, that’s it for my analysis of this ill-advised piece of legislative garbage. Maybe if we’re lucky – they’ll admit maybe they made a bad mistake, and revise it in the next legislative session. Go write Marion Hammer at Unified Sportsmen of Florida on that. She led the charge for the current bill – she can also lead the charge to correct it. However, one final word on this legislation. Aside from everything else – what the changes have also done is complicate self defense to such an extent – that anybody trying to use it will likely be confused – especially if any type of verbal threats are involved. It took me two weeks of work to figure this thing out – and I do this stuff 24/7!
Also, what you and the Legislature need to understand is that – a “threat” can be totally lawful if made in response, or to stop unlawful conduct of another! Verbal threats even more so. But, this legislation made no distinctions. In fact, had the Legislature just used language that a threat of using force or deadly force is lawful if it appears “reasonable” — would have solved everybody’s problems without having the legislative mess we now have.
But for now, the bill (and now the law) is what it is – and we’re stuck with it unless the Legislature, and Unified Sportsmen realize what a huge problem they’ve created, and are willing to take it on, and correct it. Hopefully, they will – and hopefully this article will help you and them understand the problems with this new law. *
Mistakes? NO! Imperfect? YES! Florida Carry, in cooperation with many other stake holders will continue to monitor the problems that arise and will continue to work to right them through both litigation and legislation. We will never do anything that harms the right of self-defense of law abiding citizens. This includes allowing language that protects criminals and results in a backlash against the right of self-defense.
Anyone that wishes can see the lobbying reports showing the amount of money spent on the many victories achieved in Tallahassee this session, though the dedication and hard work of USF, Marion Hammer, and Florida Carry. What they will not show is the numerous hours contributed by volunteers and citizens to make the law a little better.
I was personally in Tallahassee for every hearing on HB 89. I never saw the author there.
Eric Friday
General Counsel, Florida Carry, Inc.
