Stand Your Ground in Florida - Brandishing and Warning Shots??

[lcpiper]

Vis not necessarily true.

In some states, that may be true in a criminal sense, and in some, it may be true in a civil sense, but I certainly would not wish to be the test case.

In other states, civil liability would almost definitely attach, and criminal liability could, depending on how reckless the circumstances might make a warning shot seem.

So many comments following this and so many that I know are correct in today's world, but just wrong at their core.

I wasn't talking about the way it is, I was talking about the way it should be. I know this from fact, from actual experience, that Murphy lives. Murphy is alive and well, stuff happens.

Accidents happen.

But today we don't like to acknowledge that. It's just too good to engineer our legal society so that there is always someone to blame, someone to soak money out of in every circumstance. The thinking is that for ever bad thing that happens someone must be at fault.

It's so sad that it is so true.

It is also the kind of thinking we need to change. When truely unfortunate things happen we need to stop compounding them with witch hunts and scape goats. Stuff does happen.

In this hypothetical case with a warning shot being fired that accidently hits an innocent. On the one hand I have my life that is threatened, on the other there is the guy who is threatening mine. If a warning shot is actually feasable under the circumstances and prevents the attack and negates the need to take the attacker's life then you are already one up in the life saving department. A warning shot into a brick wall is not an unnecessary risk in this instance. If the round ricochetes and hurts or kills an innocent then that is truely unfortunate but given the circumstances was it really anything other then just an accident that happened, dispite all reasonable caution, in a volitile and dangerous situation?

Some attackers are simply incensed individuals, people "seeing red", and in these cases the atter may see the gun, may hear your warning, but it might not have any effect because the person is simply too enraged to be cognizant and able to reason. But a gun makes a lot of noise and is physically shocking to the unprepared. A warning shot could only be viewed as an attempt to save a life and please do not view all situations as the same, don't lump it all together and universally claim that warning shots are dumb as they are not. We do use them in the military. A shot across the bow is a universally accepted warning to an impending attack. It is intended to bring the others involved around to the reality of their situation and their imminent danger.

If warning shots are universally dumb, it's only because people have yet again allowed themselves to be ruled by greed, grief, and ignorance.

 

[lcpiper]

And just where is this warning shot suppose to go?

You know it is actually an extremely rare thing that shots fired that miss their intended targets actually hit any other person. They go into walls, cars, phone booths, signs, whatever but they rarely ever hit someone else unless the target is in a crowd of people and then you'll get people hurt.

But still people like to imagine that the one shot fired off in a deliberately safe direction will unerringly strike some poor sod. It's just not reality.

I just can't think of any situation where a warning shot will dissuade an attacker, where the muzzle of a gun pointing at their face wouldn't.

What if you are not the target of the agressor. Let's say you are outdoors, at the bus stop. Some dude is freaking out at his girl, man he is screaming at her in such a rage you can't even understand what he is yelling about. His arms are waving around and his hands are makeing this grasping motion like he is fighting himself trying not to grab something to hit her with. Nothing anyone is saying is even registering on this dude, he is incensed.

Now tell me a shot in the air, or into a sewer grate, might not have a positive effect on the situation.

 

[ScottRiqui]

You know it is actually an extremely rare thing that shots fired that miss their intended targets actually hit any other person. They go into walls, cars, phone booths, signs, whatever but they rarely ever hit someone else unless the target is in a crowd of people and then you'll get people hurt.

But still people like to imagine that the one shot fired off in a deliberately safe direction will unerringly strike some poor sod. It's just not reality.

Are you seriously advocating the "Big sky, little bullet" attitude as being an adequate safety precaution when it comes to firing warning shots?

I'll say one thing - your posts are never boring!

 

[lcpiper]

ScottRiqui, I was in Iraq and sometimes for a week at a time we would have dudes outside the FOB purposely and with intent fire shots at an angle and trajectory that they were trying to hit us as we walked to the mess hall at meal times. The shots were fired so their tragectory was in line with our direction of travel to increase the chances of success.

They were targeting us on purpose. Purhaps, maybe, they hit one out of two thousand shots, maybe. They almost never ever scored a hit, it was a tactic that had little risk for a very low chance of success. And that was an actual attempt that was purposeful and deliberate.

I know shots fired into the air sometimes freakishly hit someone but don't try and claim the odds are not extremely low.

 

[ScottRiqui]

I know shots fired into the air sometimes freakishly hit someone but don't try and claim the odds are not extremely low.

Remember your Operational Risk Management training? Risk is comprised of both likelihood AND severity. While the likelihood of a bullet fired into the air hitting someone is low, the severity if it *does* happen is extremely high.

Picture yourself standing in front of a judge (or worse, a grieving family) and telling them "Man, sorry about your son - the odds against that happening were HUGE!".

I'm in the military as well, and have been for nearly twenty years now. Frankly, I'm ashamed and embarrassed to hear you say "the odds are pretty low", as if it's some kind of legitimate risk-mitigation strategy.

Google "hit by stray bullet" and tell me it doesn't happen frequently enough to worry about.

 

[Evan Thomas]

I think we're in agreement, pretty much, that warning shots are a bad idea and shouldn't be condoned under law.

But, the OP wanted to discuss a specific proposed law in Florida; has anyone found the text of the proposed law? It would be nice to know, for example, if it would legalize displaying or drawing a gun (brandishing is a loaded term) only if you fear for your life (deadly force); or also in situations in which the use of force, but not deadly force, would be legal; or in even situations in which it's a matter of protecting only property.

The article linked in the OP is extremely vague on this, and it's hard to have an informed discussion of this proposed Florida law without that information.

Also, discussion of what happens in war zones is off topic.

 

[lcpiper]

OK, but read my previous post about an enraged individual and tell me the risk isn't worth it or what you would otherwise do and remember, this guy is right on the edge of grabbing something to bash this woman with.

 

[ScottRiqui]

OK, but read my previous post about an enraged individual and tell me the risk isn't worth it or what you would otherwise do and remember, this guy is right on the edge of grabbing something to bash this woman with.

Why isn't the girl walking/running away? Why aren't you pulling her away? If you can get her away from him, do so. If he attacks, then shoot HIM - don't fart around with this whole "I'll put a bullet between the bars of this sewer grate" BS.

A concealed handgun is not to be used as an "attention-getter".

 

[lcpiper]

It does happen alot until you begin to differentiate between shots that were fired at someone and missed striking others and shots actually fired up without the intent to hit someone. Then the odds start falling dramaticly.

Look, 200 tribesmen at a celebration in Pakistan start firing 10 or 15 AKs into the air and the chances obviously go up.

Someone shooting at a truck is firing at something and has a greater chance to hit thing unintended.

Someone running down a street shooting at someone else has a greater chance to hit someone else on that street.

Someone shooting a single shot into the air has a pretty small chance of hitting someone and in some cases, your only option is to definitly shoot someone anyway or take the risk in order to get them to come to their senses.

Even if you deliberatly shoot someone in order to defend yourself or another you can still hit someone else. Every time you pull the trigger there is a chance however small of something unintended happening.

Why isn't the girl walking/running away?

I presented the hypothetical, don't twist it. If they all ran away none would ever get beat huh?

All I am saying is everyone is looking at this as if it's always a clear cut him or me situation and it isn't always that way. The situation I presented was neither unlikely nor an unreasonable one for you to place yourself into.

I'll step it up, he looks about 26 years old and he is kinda big, and you are 55 and definitly not in your prime anymore, physically pulling him off her is not an option, no one else is doing anything, you are the only thing that might stop him from bashing in her head.

He hasn't grabbed anything but he could snatch up an improvised club from any number of things close at hand. Now what do you do? Here are your multiple choices.

1. Sit there ready and see where it goes, if he grabs a weapon, you draw and shoot.

2. You keep yelling at him hoping he will come around, you are ready to draw, and will shoot if he attacks, but what if you are making it worse?

3. He isn't paying attention to anything you have said, if you grab her will he attack you with you too close to use your CCW. Will he attack her anyway, you can't physically stop him without your CCW. You consider the safest way to fire a warning shot and you hope he is surprised out of his rage by the report.

Sometimes there are no good choices, which one gives you the best chance at a decent outcome is all you can look for.

 

[ScottRiqui]

The article linked in the OP is extremely vague on this, and it's hard to have an informed discussion of this proposed Florida law without that information.

Agreed. The bill in question is Florida's HB 1047: Defense of Life, Home, & Property.

You can read the text of the bill here

Sounds like they're going with the "defensive display" wording, rather than "brandishing".

 

[Evan Thomas]

Thanks, Scott.

The most relevant bit, for this discussion, seems to me to be this:

The Legislature intends to clarify that the defensive display of a weapon or firearm, including the discharge of a firearm for the purpose of a warning shot, does not constitute the use of deadly force and is a valid method of preventing or terminating an imminent or actual violent criminal attack.

(2) It 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 (a) 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...(my emphasis)​

So this would define a warning shot as NOT constituting deadly force, and it would be OK to fire one in defense of property.

I'm immediately struck by the weirdness of saying that it's OK to do either to "...defend property from violent attack..." So you could fire a warning shot if someone were vandalizing your Caddy?!

This doesn't strike me as a well-thought-out piece of legislation.

 

[Gaerek]

But still people like to imagine that the one shot fired off in a deliberately safe direction will unerringly strike some poor sod. It's just not reality.

And so, in a shooting situation, you're going to be able to find a potentially safe backstop for that round? In a shooting situation, you WILL have what's known as target fixation. You will NOT be looking for a safe location to discharge a weapon, you will be looking at the bad guy, whether you're his intended target or not. It's human nature to fixate on the immediate threat. IF (and I truly emphasize IF) you were to actually fire a shot into a safe backstop (I find it highly unlikely), then go ahead. You're still going to have to explain why you fired a round that had no intended target. Maybe it'll work out for you, maybe it won't.

What if you are not the target of the agressor. Let's say you are outdoors, at the bus stop. Some dude is freaking out at his girl, man he is screaming at her in such a rage you can't even understand what he is yelling about. His arms are waving around and his hands are makeing this grasping motion like he is fighting himself trying not to grab something to hit her with. Nothing anyone is saying is even registering on this dude, he is incensed.

I love "What ifs..." I can give you hundreds of them where a warning shot will be unproductive or counter productive. It really doesn't help an argument to use them. It's not a real situation, and it hasn't actually happened, it's all theater of the mind. I'm also not saying a warning shot can't be effective, I just think there are other things that are more effective. In your situation, I wouldn't fire a warning shot. I'd keep a bead on him with my gun with one hand, yelling at him to stop, to get away, and I'd use my other hand to call 911. IF (again, that's all What Ifs are good for) it escalates, then you do whatever is needed to de-escalate the situation.

Now tell me a shot in the air, or into a sewer grate, might not have a positive effect on the situation.

I don't think it's the best option. Read above. I think strong words, and the muzzle of a weapon are just as effective as a warning shot. You assume, in your what if, that he'll respond to a shot. If he's blacked out, or in a rage, he might not respond to anything, including the sound of a gun (See, I just what if'd your what if).

I do not believe a warning shot can be done successfully, and safely. I believe that even though you might think you have the presence of mind to find a safe backstop for your round, the reality is, you'll find it nearly impossible to move your eyes off your potential target. The reality is, you'll likely crank a round off into the air, rather than a find a safe backstop. This is dangerous, and people have been killed by it (Amish girl, black powder rifle for a relatively recent example).

You do what you think is right. I still cannot think of a single situation (talking strictly about self defense here) where a warning shot is the best option. There are far better options than this dangerous, negligent practice.

EDIT: Here's some actual stories of how dangerous a warning shot can be. And don't say that these couldn't happen to you. Target fixation and adrenaline cause a lot of trouble that people didn't think could happen.

http://www.mlive.com/news/flint/index.ssf/2011/02/flint_police_warning_shot_kill.html

http://articles.chicagotribune.com/...y-manslaughter-warning-shots-guillermo-pineda

http://lagniappeslair.blogspot.com/2012/11/burglar-killed-by-warning-shot-three-co.html

These are all cases of people who fired a warning shot, not intending to kill someone, instead scare them away, yet they ended up killing someone. The second case could have been solved by strong words (Stay Away from ME!) instead of firing a gun. The other two, it was the criminals themselves that were killed, but the person who fired the shot, specifically said they fired to scare them away, and not kill anyone.

I saw many more, they're fairly common and easy to find.

Warning Shots = Stupid and Negligent

 

[TailGator]

There was nothing in previous Florida law, as far as I know, that governed those "in between" situations in which there was a real threat that had not reached the point of gunfire. After reading this legislation, it seems like it basically prevents prosecution for preparing but not firing in legitimate defensive situation; that seems fair and reasonable to me. Without this legislation, it is conceivable that one could have more protection for firing on an aggressor than for drawing, seeing the aggressor flee, and holding fire.

For all the reasons that I and others have previously stated, I dearly wish that it did not include warning shots as a protected action. That seems like it has the possibility of getting an otherwise good bill voted down.

 

[OldMarksman]

First, if I am not mistaken, appellate court rulings in Florida have already established that the display of a firearm does not constitute the use of deadly force. To the extent that that is true, the courts have already determined what the legislature has intended, and that part of the bill is therefore superfluous.

Second, the section of the bill that states that deadly force may be used if the actor reasonably believes it is necessary to do so to protect against death or serous bodily harm is redundant with existing law.

Third, (1) the definition of deadly force as force that is "reasonably known to be likely" to cause death or serious bodily harm, while it is a common one, (2) the provision that "defensive display" does not constitute the use of deadly force, and (3) the inclusion of firing a shot in the definition of "defensive display" would likely combine to create the making of some very interesting case law. Could anyone one in his right mind successfully argue that firing shots under an emergency situation of immediate need and imminent threat would be unlikely to cause death or serious bodily harm?

Fourth, as Vanya has noted, the idea of defending property from "violent attack" is a very strange one indeed.

Bad idea all the way around.

The author of the bill has borrowed, far too loosely in my option, from Arizona and Texas law. The Arizona legislature saw the need to provide for the lawful defensive display of a firearm in some circumstances in which physical force was lawfully justified. Their reason was that under prior law, persons were being convicted of aggravated assault in instances that the legislature and others considered unjust.

But the Arizona law dos not provide for drawing the firearm, nor does it permit the lawful firing of the weapon unless deadly force is in fact justified.

This won't go anywhere, nor should it, as written.

 

[ClydeFrog]

Florida Div of Licensing...

The concealed/W license handbook & FS 493 are very clear, IMO that in the state of Florida; you can NOT use a firearm(discharge) to defend property only to protect yourself or others from a violent crime or direct attack.
This includes arson, sex crimes(rape-assault), armed robbery. A private citizen can't pursue a felon or shoot at random.

See; www.floridafirearmslaw.com www.gunlawguide.com www.mylicensesite.com . The W/concealed license handbooks are free to the general public too.

Clyde

 

[Gaerek]

Their reason was that under prior law, persons were being convicted of aggravated assault in instances that the legislature and others considered unjust.

Living in AZ and being a pseudo expert on self defense and gun law here (I've read the laws several times, as well as reading interpretations and case law regarding them all the time), the reason people were being convicted was because the law stated that showing a firearm when deadly force wasn't justified was considered aggravated assault. People were getting convicted because they were flashing their gun, or saying they had a gun, when they felt threatened, but couldn't articulate a threat. So a law was passed that allowed for defensive display. Unfortunately, the law wasn't very well written on when it could be used, because the criteria is almost exactly the same as the criteria for actually using deadly force.

13-421. Justification; Defensive Display of a Firearm; Definition
A. The defensive display of a firearm by a person against another is justified when and to the extent a
reasonable person would believe that physical force is immediately necessary to protect himself against the
use or attempted use of unlawful physical force or deadly physical force.

And here's the law for justification of use of deadly force:

13-405. Justification; use of deadly physical force

A. A person is justified in threatening or using deadly physical force against another:

1. If such person would be justified in threatening or using physical force against the other under section 13-404, and

2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.

B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act.

The difference is you can display defensively when physical force is warranted. But you can't use deadly force until deadly force is threatened. I've talked to a couple laywers and experts in AZ about this and they say that the defensive display law is vague, and they recommend not doing it, unless you're planning to use it or you want to be a test case. The law has yet to be tested so there is no precedent on it.

 

[shortwave]

I've talked to a couple laywers and experts in AZ about this and they say that the defensive display law is vague, and they recommend not doing it, unless you're planning to use it...

More or less the same advice given to me by an attorney here in Ohio....but then again, why would someone intentionally brandish a gun unless they were in a position to have to possibly use it?

 

[MLeake]

shortwave, one example:

Guy is twenty yards away, but approaching, shouting threats, and holding a baseball bat in a menacing manner.

He's obviously a soon-to-be threat, but at this point is still at sufficient distance to muddy the waters as to whether he is an immediate threat. Use of deadly force may be a hard sell in this situation.

However, this seems to me like EXACTLY the kind of case where display of a firearm may be the best bet. He's still too far to effectively close prior to potentially being shot, but near enough to see the gun and decide that maybe he should abort his current actions.

 

[MLeake]

shortwave, another example (based on scenarios reported in central Florida and Seattle, when I lived in either place):

Young, gangsta wannabe idiots have leashed pit bulls, that they threaten to unleash on people from many yards away. At this point, dogs are leashed, and dogs and owners are not quite at immediate threat distance.

Show of gun may (or may not) convince dog owners to take dogs and depart.

 

[shortwave]

Guy is twenty yards away, but approaching, shouting threats, and holding a baseball bat in a menacing manner.

MLeake,

Very close to what happened to me as stated in my earlier post.

Young, gangsta wannabe idiots have leashed pit bulls, that they threaten to unleash on people from many yards away. At this point, dogs are leashed, and dogs and owners are not quite at immediate threat distance.

Yes, the pits(plural) the gangsta was fixin to turn loose on me would get the same.
I may still yet be able to handle one trained pit bare handed without getting torn up too badly, but I wouldn't risk more than one.

Don't feel like getting chewed on anymore then I feel like getting beat on with a stick.

But I would never brandish any type of weapon unless the physical safety of someone I'm with or myself were in very apparent jeopardy and we had no escape route.

I posted of this incident on another thread some time ago. I'll make this as brief as possible:

About 25yrs ago I lived in the inner city in a very bad area. On a Sat.. evening, brother and wife came over to visit. About 10pm that evening we decided to walk down the street to a Convenient store that was no more then a couple blocks from the house. We got about halfway there and a guy came out of the alley and started crossing the street diagonally coming straight towards us.

As he turned out of the alley, I saw a flash of something he had in his hand as there was a street light on that corner. I told my brother this guy was surely approaching us, that he had something in his hand and not to say a word . But I was not going to let this guy get close to us.

As the guy got to the middle of the street, coming straight towards us, I could see a knife in his hand. He had not said a word but was looking straight at us. I drew on him and he stopped just before the curb. He acted like he was geeking badly as he said "all he wanted was a cigarette".

As brother and I were slowly backing up,I told him "not to get any closer, drop the knife and that it didn't take a knife to ask for a cig."
He dropped the knife(ended up being two lock blade knives. Handles taped together) and turned and ran back up the alley.

When brother and I got to the store, we were standing in line and another guy blasts through the door screaming at the cashier to call 911. His girlfriend had been stabbed by her brother at her house.

Come to find out, the same guy that came up to us had just left his sisters house the next street over before he got to us. Apparently, he had been at her house trying to bum money. She wouldn't give him any. He left sister's in a huff, came up to us with his knives drawn and there was no doubt in my mind a cig. was the last thing on his mind. When he left us, more mad at this point, he went back to sister's house , entered her house through the back door and as he passed through the kitchen on the way to the living room, grabbed a butcher knife.

Sister and boyfriend were on the living room couch. Brother heatedly asked her for money again and when sister told him no and to leave, he stuck her. Boyfriend ran out of the house to the store for the 911 call.

This jewel of a human, on probation, had just got out of the joint about a month prior. Did a two year stretch for stabbing a fella in a bar fight. Cutting someone was nothing new to this dirtbag.

At any rate, another time I know that brandishing a gun in a possible life threatening situation saved my/brother's bacon....and very Thankful for my/our outcome on both counts. By the way, the sister(girl stabbed) lived and brother eventually headed back to the pen for a long time.