FL:Defensive Display and (warning shot) Bill Supported by Public Defenders, Opposed by Prosecutor

Gun Watch ^ | 20 December, 2013 | Dean Weingarten

[marktwain]

Arizona passed a defensive display law in 2009.  Now Florida is considering a very similar law, "Threat of Force to Stop Attackers", HB89.   The bill applies the same protections to the threat of deadly force as the current law provides for the use of deadly force.  The Arizona law was prompted by a case in which  the victim was going into the court house for the trial (he was accused of aggravated assault) when the prosecutor let the defense know that they had a third 911 call that showed that the victim was telling the truth.  Both the victim and the aggressors had called 911.  Then the case was dropped, but the aggressors were never prosecuted.

Bill Cervone, the Florida State Attorney (prosecutor) quoted below, is being disingenuous to a surprising degree.  It is not juries who decide the vast majority of cases.  It is prosecutors like him.   They have enormous power to pick and chose which cases are prosecuted, and to offer and promote the plea bargains that they make, with the ability to threaten to prosecute or not prosecute other people (often related), take away children, and confiscate property.   The threats may not always be credible to a trained attorney, but often, there is no attorney involved.  That is the way the system currently works.  A law that protects innocent defendants takes away some of that power, and the State Attorney seems to find that a threat.   To claim that  "juries are the place we test anyones particular stake or claim in a case"  is a fabrication for the vast majority of cases.  From wcjb.com:

GAINESVILLE - A warning shots bill is gaining traction, backed by the NRA and now the Florida Public Defender Association.

The bill would make it legal to fire a warning shot or show someone you have a gun if you feel threatened.

(snip)

State Attorney Bill Cervone, 8th Judicial Circuit: "it's my opinion that juries are the place we test anyones particular stake or claim in a case."

 This case shows how the justice system works in practice.   Someone is arrested and charged with a crime.  The prosecutor decides how the case should be disposed, taking into consideration the political aspects of the case.  The prosecutor makes the deal so appealing, considering the enormous risk and cost of defending oneself in a jury trial, that the vast majority take the plea deal rather than take the risk of a jury trial on a charge with potential felony convictions and years in prison.    That is the power that the prosecutors do not want to give up by allowing a defensive display law in Florida.

It would be different if the current law mandated a maximum $1,000 fine or 30 days in jail.   That would be bad enough, potentially leading to loss of job and enormous stress for an act in which no one was actually harmed.   But that is not the case.   In Florida the risk is much, much greater, a felony conviction and a *mandatory* 10 or 20 years in jail.   The threat of those sorts of punishments are what gives the prosecutors their enormous power.   There is no accountability for prosecutors, except for the almost never exercised possibility of losing the next election.  Prosecutors have as near complete immunity for their actions as the law allows. 

The only controversial part of the proposed bill is that which allows for "warning shots".    The House Judiciary Chairman explains the reason for the "warning shot" inclusion in an article from the sunshinestatenews.

"I'm very hesitant to change anything in 10-20-Life," Baxley said. "Except that I've run into this more than once, where constituents have gotten into this narrow space where they were trying truly to avoid a conflict by a warning shot, and instead wound up charged and having to plead to a felony of lesser degree to avoid a prison sentence because they just were afraid to face a jury."

The current dogma among self defense instructors is that warning shots are a bad idea.   I have taught that policy myself for over 15 years.   I have also read and heard of numerous instances of where "warning shots" seem to have worked, and a few where they have gone spectacularly bad.  I still think they are generally a bad idea, but every policy has exceptions, including the blanket ban on "warning shots".   I do not believe that a person who was involved in a defensive situation, who fired a shot where no one was harmed, deserves to be threatened with a mandatory 10 years in jail to provide incentive for them to plead guilty to a lower charge.

We ran into the same situation of prosecutors defending their turf in Arizona in 2009.  Their concerns have been shown to be completely unwarranted.  Here is Marion Hammer explaining the necessity for the Florida "Threat of Force to Stop Attackers" bill:

10-20-Life was never intended to be used against citizens who, in an act of self-defense, threatened the use of force to stop an attacker.

It was never intended to be used on citizens who, in fear for their own safety, threaten to use force to stop an attack.

Yet that’s how some prosecutors are using it. Depending on the seriousness of the threat, they’ll try to put you in prison for 10 years or 20 years for threatening to use deadly force to protect your own life or the lives of your loved ones.

So the message from those prosecutors seems to be, if you actually use force in self defense — the law protects you But threaten to use force in self-defense, and they’re going to put you in prison for 10-20 years.

That is the cold hard reality of how some prosecutors are treating law-abiding people who never would have been in the system if they had not been attacked and in fear for their own safety. 

There are people sitting in prison today who should not be there – but they are because prosecutors abused their discretion and violated the intent of 10-20-Life. This bill will stop that. Please support it. 

There you have it.  The purpose of the bill is to reign in abusive prosecutors.  It is not hard to understand that prosecutors want to hang onto their nearly unlimited power.


©2013 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

[marktwain]

Questionable judgement in using a warning shot to stop an attack does not deserve a mandatory 10 years in jail when no one was hurt.

[SWAMPSNIPER]

I have mixed feelings, an increase in indiscriminate shooting could endanger self defense laws in general.

If I pull the trigger I will have shirt buttons in my sights.

[Salvavida]

Lack of self-defense training leads to these types of cases too. I’m for it, but without the warning shots.

[Old Sarge]

PINGeroo...

[antidisestablishment]

While I am totally opposed to warning shots, I do support this bill. It is a shame that they conflated warning shots and brandishing, but that is the legislature for you.

Bearing arms explicitly means being able to show someone your weapon, or even taking aim with or without firing. It is stupid that current FL law requires you to shoot someone to ensure you are not prosecuted by the state persecutors.

[driftdiver]

I don’t think you should even pull a gun unless you have cause. And you shouldn’t discharge it unless you are trying to stop someone from hurting you or someone else.

[longtermmemmory]

Prosecutorial misconduct is standard operating procedure in florida.

[riverrunner]

Defensive display should be legal every where if one can prevent or stop a crime by merely showing that one is armed.

Seems like a good idea, the left hates the idea because it shows the usefulness of being armed.

Warning shots most of the time a bad idea. I know of a couple of times where they were used and the subject complied and wasn’t shot.

It takes a very special set of circumstances to considered them. One just can’t be popping rounds off into the air hoping for the best.

[riverrunner]

Stopping a criminal attack on oneself with out firing a shot sounds like a good idea to me.

Shooting some one no matter how justified brings on its own set on problems.

[driftdiver]

I just don’t think the chances of someone reversing course at the simple sight of a weapon is good odds. Some people think a gun is a magic wand and all they have to do is wave it.

[marktwain]

What odds are you considering? I have been reading and writing about people using guns defensively for the last 40 years. Been doing it very intensively for the last five. The overwhelming majority (probably over 90+% of the time, the scenario is some variation of “someone shows a gun and the aggressor runs off”.

[driftdiver]

Odds of just showing a gun and the attacker runs away are low IMO but it depends on the circumstances.

Im just saying a gun shouldn’t be waved around like a magic wand. It should stay concealed until you have cause.

[driftdiver]

Why do you post your responses to All? You’ve done this several times. People can read the thread if they are interested but it seems curious as to why you have to shout out to everyone when there is someone that you disagree with.

[marktwain]

I usually post to all because I believe that if people are interested enough in the thread to post to it then they are likely to be interested in responses.

I have been doing it for some time. I do not consider it “shouting”, which I reserve for using all caps. If the response is particularly to an individual, and is not meant for general interest, then I may not post it to all.

If someone is posting on a public forum, it is meant to be seen by many. Yours is the first complaint that I have had, and you would have been posted to if I had left the “all” off.

Sorry if I have offended you, that was not the intent.

[antidisestablishment]

A gun isn’t a magic wand, but I can guarantee racking a shotgun quickly gets people’s attention, and aiming a weapon without firing is not always a bad choice.

There are many times that just showing a weapon will deter criminals—of course that means being prepared to fire, and not just “waving it around.”

[driftdiver]

“There are many times that just showing a weapon will deter criminals—of course that means being prepared to fire, and not just “waving it around.”

Yep, I was always taught not to pull a firearm unless there was cause and you were ready to use it.

Doesn’t mean you have to shoot them, but firearms are deadly force and aren’t meant as warning devices.

[bravo whiskey]

i too have mixed feelings. if this means it’s leagl to show a person you are armed so as to defuse the situation (as in pulling your coat back and putting your hand on your holstered weapon i’m for it. once the weapon leaves the holster the only shot is to the body. warming shots are dangerous and a lawyer can argue “if you had time for a warning shot, you weren’t in a life threatening position.”
if you are willing to draw you have to be willing to shoot and possibly kill. if you haven’t given that serious thought, you shouldn’t carry.

[bravo whiskey]

look at how many shootings have been stopped because of a drawn weapon. that 22 year old guy in the oklahoma mall and this socialpath in colorado last week shot themselves because they knew an armed response was imminent.

[SWAMPSNIPER]

If I draw I am committed to finishing the situation.

[B4Ranch]

>>I just don’t think the chances of someone reversing course at the simple sight of a weapon is good odds. Some people think a gun is a magic wand and all they have to do is wave it.<<

I have had it happen twice. Once all I needed was to show the holstered weapon, the other time I actually had to unholster it. The last thing I wanted to do was shoot the punk because of the time and money that would have cost me.