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

[Gaerek]

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.

I don't think anyone was arguing that there weren't situations where it should be done, I know I wasn't. In my post, it wasn't recommended because legally, it hasn't been tested in court, and no one really knows the outcome. The difference in situation between where you can defensively display and where you can use deadly force is very close. In most cases, it isn't wise to show your "ace in the hole" until the last possible moment.

Most states (that have defensive display laws) require imminent threat of physical harm or greater to legally display. In the case where someone is too far away to cause you harm before you could draw, it would be illegal to display, and you could get arrested (at least in AZ, won't speak for other states) for aggravated assault. In your first case, in AZ, if he was not an imminent threat (and someone with a baseball bat at 20 yards is likely not imminent) it would be illegal to display your gun. Strong words, and a defensive posturing would be all you could legally do at this point. If he continued and got to the point where he was an imminent threat (baseball bat is considered lethal force), draw down and see what happens. At this point, you are covered under use of lethal force, not defensive display. Granted, a test case could potentially find that this situation is imminent, but this is why it was recommended to me not to do it...because being a test case sucks.

In the second case, dogs that are trained to attack, are usually considered lethal force. If the dogs are close enough to be considered imminent, draw down...you are covered under use of lethal force laws at this point...not defensive display. If they're not far enough away to be considered an imminent threat, you are not likely covered under defensive display. Keep in mind that in this gang bangers with dogs situation, bringing out your gun if you don't have to use it might cause them to sic the dogs on you, and draw their own guns. Now not only do you have two dogs to deal with, but two guys with guns. It might just escalate as a result...but here I am What iffing your situation. I see someone who is dressed like a gang banger, I assume they're packing.

Of course, this is all talking about AZ as I don't know other states individual laws. But this is why it was recommended not to use defensive display, because the situations where you can likely legally do it are incredibly narrow. There are very few situations where you would be covered under defensive display, but not use of lethal force. And even in those few, narrow situations where you could use it, it might not be wise to do, tactically, until it does escalate to an imminent threat.

 

[MLeake]

Gaerek, the problem with everything you just said is that we are arguing whether a law should be drafted to codify when defensive displays SHOULD be allowed, not whether defensive display is already legal in your state.

 

[Gaerek]

I understand, and I agree with you. I do think it should be allowed. My point was that the laws need to be carefully drafted. Too lax, and it'll cause problems. Too strict and you get AZ's, almost useless law.

And, technically, defensive display is legal in AZ, but it's so hard to use it legally in a situation where you aren't already covered by use of force laws (which practically every state has, and is more or less in agreement about). In 99 out of a 100 situations, (according to the lawyers and experts I've talked to about it, anyway) it's either illegal to "display" or your already covered under use of lethal force. It's basically a useless law. Of course, this could change with a court precedent, and make it more useful, but no one wants to be a test case, and it would be a tough, expensive argument to make.

The points I wanted to make with your situations are that whether it's legal or not, those aren't necessarily great situations to display. Although I do agree with you that the ability to display a firearm when you are being threatened with physical harm should be legal, I simply don't think it's a wise tactic in most situations.

We do agree here, though.

 

[MLeake]

And my point wasn't that such situations would be legal in any given state, but that they are examples of situations that should be legal in a properly drafted law.

So we agree about what is desirable, which is better drafted legislation that makes it clearer as to when defensive displays are justified.

Personally, I think the AZ interpretation you provide (if accurate, no insult intended) makes defensive display pointless. If I have to wait until the threatening guy with the bat is approaching Tueller Drill territory, then I'm probably justified in shooting him.

 

[Gaerek]

Personally, I think the AZ interpretation you provide (if accurate, no insult intended) makes defensive display pointless. If I have to wait until the threatening guy with the bat is approaching Tueller Drill territory, then I'm probably justified in shooting him.

That's exactly it. The only case where it might be legal, if I modify your original scenario about the guy with a baseball bat is if he was not armed, but was threatening to use physical force, the threat was imminent, and there was no disparity of force (well, there could be disparity of force, but then you'd be covered under lethal use of force). You'd likely be covered under defensive display, but not lethal use of force in this case. When I brought a similar situation up to the experts I know, they said in that case, it would still be iffy with the way the law is written. They said you'd have to convince a jury that you needed to bring a deadly weapon to bear when deadly force wasn't present...even though the defensive display law supposedly covers it. He said a crafty prosecutor could really screw you.

In other words, even though I am basically content with AZ's self defense laws (yay for Constitutional carry!), I most likely won't be utilizing defensive display.

 

[lcpiper]

ScottRiqui, I am trying to figure out why you are taking quotes from my later posts and editing your previous posts with them?

Are you simply confused with the natural order of our discussion? Did you mistakenly edit the wrong one in reply?

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

And Vanya, I now you are staff but are you telling me that if the sun rises in the east in a war zone that it does not also rise in the east in LA?

Information which is applicable is valid regardless of the circumstances. Just because it occurs in a war zone does not exclude the validity of the occurrence or it's bearing on a subject.

Now if the subject of whether warning shots are a good idea or not, or never a good idea, or any variation thereof is not on topic with the OP's original query and threatens to derail the subject, that would be a different matter. Was that your intent Vanya?

 

[OldMarksman]

Posted by MLeake: If I have to wait until the threatening guy with the bat is approaching Tueller Drill territory, then I'm probably justified in shooting him.

Probably so, if you can produce evidence of a reasonable belief that he intends to injure you seriously with it and that you have no other alternative (retreat laws enter into the equation on that.)

Personally, I think the AZ interpretation you provide (if accurate, no insult intended) makes defensive display pointless.

The difference is that defensive display is justified to defend against the use or attempted use of unlawful physical force or deadly physical force.

No need for him to be wielding a baseball bat or to be known to be armed with a lethal weapon.

 

[Evan Thomas]

Information which is applicable is valid regardless of the circumstances. Just because it occurs in a war zone does not exclude the validity of the occurrence or it's bearing on a subject.

Now if the subject of whether warning shots are a good idea or not, or never a good idea, or any variation thereof is not on topic with the OP's original query and threatens to derail the subject, that would be a different matter. Was that your intent Vanya?

What happens in war zones, and whether or not it's "effective," isn't relevant to the situations faced by people on American soil or to what they're allowed to do.

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

A more general discussion of the pros and cons of brandishing and warning shots in the context of self-defense sheds light on the problems with the Florida law. That's fine, as long as the discussion is informative and friendly, and doesn't stray too far afield.

 

[OldMarksman]

Posted by Gaerek: In other words, even though I am basically content with AZ's self defense laws (yay for Constitutional carry!), I most likely won't be utilizing defensive display.

Well, one most certainly should not display a weapon in public, much less draw one, unless it is immediately necessary to do so, but in those very few jurisdictions in which the law (including case law) so reads, it is certainly a good thing for the defender to have a threshold of physical force for justification rather than deadly force.

 

[bazookajeff89]

lcpiper a little note on your inefficacy of the big sky little bullet

While my mom was pregnant with me, she and my father were in their motorhome parked somewhere along the rose parade for New Years. While she was stading at the door, a bullet came down and went through the awning above the door and into the metal steps near her feet. Just a foot away from where it could have hit her in any number of places.

Now, is it unlikely that when you shoot a gun into the air it will hit someone? unless theres a crowd then probably. Would the loud noise scare someone in a situation? I'd freak out so also likely. But the fact that you're advocating that a shot up into the air is ok just because it's unlikely it will hit someone is absolutely cerifiable. Know your target and what's behind it. A common law when dealing with guns. When you're shooting at that angle you have 0% chance of saying where it will hit. So please do me a favor and load a blank as your first round so you don't accidentally kill anybody

And just so as to keep this about the original post: making an obvious gesture that you are armed to keep it from escalating I feel is appropriate....Warning shots, well you already know my opinion there

 

[ClydeFrog]

Recent Florida crime(video of event; baseball bat)...

Approx 2 weeks ago, the Orlando Florida area media released CCTV video of a strange guy who attacked 2 unknown females with a bat. The unarmed women were not killed but they were hurt in the violent crime.
The subject, a well dressed man in his early 40s had a criminal history & was arrested for the attack.
I'm not that skilled but the video(s) may still be in the news archives; www.wftv.com www.cfnews13.com www.clickorlando.com .

My point is that a violent assault can occur anywhere from any source.
The subjects baseball bat & crazed demeanor would mandate a immediate response. If I were there, I'd draw & fire at the subject then cover him if the threat ended. The crime occurred in a upscale condo parking lot & the subject had dress clothes(his motives are still unclear).

CF

 

[Gaerek]

Well, one most certainly should not display a weapon in public, much less draw one, unless it is immediately necessary to do so, but in those very few jurisdictions in which the law (including case law) so reads, it is certainly a good thing for the defender to have a threshold of physical force for justification rather than deadly force.

I agree with you, it's better to have the law than not to have it. Having the threshold at physical force, rather than deadly force does give it some usefulness.

What's unfortunate, however, is two things. One, there is no case law on this relatively new AZ law, so there's a huge unknown about how much threatened physical force is required before the threshold is met. Does someone saying "I'm gonna kick your [swear word for rear end]!" meet the threshold? Do they need to be making a threatening gesture? Do I just need to be able to articulate a fear that someone was going to use physical force on me? All of these are important questions, because if I'm wrong, I'll could be found guilty of felony aggravated assault and misconduct with a deadly weapon. Those charges mean I don't get to have guns for protection anymore.

The second reason is, (and this is less about the legal aspect, and more about the practical aspect of the law) if I'm in a situation where someone is threatening physical force on me, and let's assume the legal threshold has been met, is it a good idea to give up my ace in the hole? Or would it be better to pull out my tactical pen/tactical flashlight/small striking weapon, or pepper spray, if I have it? I suppose this depends on the circumstances.

If I'm with my family (almost 4 year old, almost 1 year old, and wife) and someone threatens any or all of us with imminent physical force, I'm drawing, because legally I can articulate a fear for the life of a family member (due to disparity of force) which allows the use of lethal force. But then this falls under use of lethal force laws, not defensive display.

I'm glad there is a protection for defensive display. But from where I'm standing, and from what I've gotten from experts, the law is too narrow to be very effective. Besides, I'm personally (I won't speak for anyone else) not comfortable even showing I have a lethal option when lethal force isn't being presented to me. I also have no interest being an expensive test case that has the potential to take away from me the right to protect myself.

 

[OldMarksman]

If I'm with my family (almost 4 year old, almost 1 year old, and wife) and someone threatens any or all of us with imminent physical force, I'm drawing, because legally I can articulate a fear for the life of a family member (due to disparity of force) which allows the use of lethal force.

Not so fast.

Consider the Larry Hickey case in Arizona.

Also, "someone" vs. you would most likely not present a disparity of force unless he were very large and you, old or unfit.

 

[Gaerek]

Not so fast.

Consider the Larry Hickey case in Arizona.

Also, "someone" vs. you would most likely not present a disparity of force unless he were very large and you, old or unfit.

Just read this:

http://www.armedcitizensnetwork.org/images/stories/Hickey Booklet.pdf

And I think everyone who carries a gun should read it too. I had heard about Hickey (I don't live in Tucson, but I do live fairly close, and the range I go to most of the time is in Tucson), but didn't know the facts of the case. Quite an eye opening account.

I mis-spoke a bit when I mentioned someone vs me. I also know that if I were ever in a situation where I had to defend myself against someone who was unarmed, I'd have difficulty with that because of my size...being 6'5" and 300ish pounds. There aren't many people out there bigger than me physically.

I had actually been thinking about all of this because of a situation that occurred a couple days ago. I had met my wife for lunch, and had brought our (almost) 1 year old (my almost 4 year old was at preschool). As we were leaving for the car, I noticed out of the corner of my eye a man, about 6ft, maybe 180lbs, with a heavy jacket on (it was 80 degrees outside) who was on an intercept course for where we were headed. I immediately went into Condition Orange. I was carrying my son in my right arm, and quickly switched him to my left arm (gun is on my right hip). At the same time, I stopped, took as aggressive of a stance as I could, and said, "Hey man, stop there! Do you need something?" He stopped, and just said he wanted a couple bucks, and was hungry. My wife dug a couple bucks out of her purse, and was about to hand it to him. (He was still a good 15ft away). I told her to just fold it up and toss it to him. While she was doing that, I unlocked the car, and keeping an eye on the guy, got my son in his car seat. I waited outside the car until my wife was back in the car, and the guy was walking away.

The situation ended without a problem. But I started thinking about what would I do if he had decided to attack? I imagined if he had attacked my wife, that would be obvious disparity of force. I imagined if he had come after me at that point, I could consider it disparity of force, because I had to protect my infant son, and couldn't defend properly against physical attacks. But now I'm reconsidering that...especially because I was in Tucson at the time. It really makes me wonder. I think legally it would have been considered disparity of force, but then again, I'd have to convince 12 people who aren't at all versed in self defense issues of that.

You seem to have a great handle on these issues. Case law, and state issues not withstanding, what do you think?

 

[OldMarksman]

Posted by Gaerek: ... a situation ... occurred a couple days ago. ... I noticed out of the corner of my eye a man, about 6ft, maybe 180lbs, with a heavy jacket on (it was 80 degrees outside) who was on an intercept course for where we were headed. ... At the same time, I stopped, took as aggressive of a stance as I could, and said, "Hey man, stop there! Do you need something?" ... (He was still a good 15ft away). ...

Consider that (1) the man was behaving legally and (2) eye and ear witnesses could reasonably be expected to believe and to say that you intitiated a confrontation.

The situation ended without a problem. But I started thinking about what would I do if he had decided to attack? I imagined if he had attacked my wife, that would be obvious disparity of force.

Well, yes, unless you were there with her.

I imagined if he had come after me at that point, I could consider it disparity of force, because I had to protect my infant son, and couldn't defend properly against physical attacks. But now I'm reconsidering that...

You might get some sympathy, but I would not want to try to argue that my having a child along gave a smaller man an overwhelming physical advantage over another.

I think legally it would have been considered disparity of force, but then again, ...

As Marty Hayes tells us, that's a tenuous defense.

Case law, and state issues not withstanding, what do you think?

Do not fall into the trap of trying to read the law to find out how you might justify showing a gun, pulling a gun, or firing one.

Do those things only when it is crystal clear that it is immediately necessary--that is, you have no other alternative-- to do so to protect yourself or you family from death or serious injury.

 

[Gaerek]

That's pretty much what I'm thinking now. It's amazing how six months ago, I "knew" how I would react in many different situations. Yet what I know changes just about every day. Tomorrow I'll know something different. The bottom line is carrying a gun means you have a great responsibility. You have to make a decision in an instant, and you'd better hope and pray that those 12 "peers" are able to agree with that decision.

 

[ClydeFrog]

Fish vs AZ...

Another good use of force case to review is the Harold Fish incident in AZ.

Fish, a retired teacher with a valid carry license & no criminal records shot at a man who attacked him with a small group of dogs.
Fish had a Caspian 10mm semi auto pistol(1911a1) & Federal Hydra-Shoks.
The jury convicted Fish but he filed an appeal. He was later set free & the state elected officals in AZ changed the use of force/gun laws because of the Fish incident.

CF