courtesy someecards.com

Florida is considering a bill, HB 89, that would protect citizens who defensively display firearms or who fire warning shots, from being victimized by the law for the act of defending themselves. The genesis of the law is the fact that most people are able to defend themselves by merely showing the attacker that they are armed. This defuses the situation in the vast majority of cases: people do not want to be shot. There’s apparently no truth to the rumor that, should it be enacted, the law will be known in the Sunshine State as Jill Biden’s Law . . .

The problem the bill attempts to address is that a person who defensively displays a firearm or fires a warning shot may well be prosecuted under current Florida law. It is not uncommon for criminals to accuse people who thwart their crimes of being the aggressor. The same situation led to the passage of a similar defensive display law in Arizona. The rationale is that it’s better to allow the defensive display of a firearm to prevent a crime and prevent someone from being shot, than it is to require that the gun remain hidden until it *must* be fired in self defense. Here is the opening paragraph of the proposed Florida law:

 

An act relating to defense of life, home, and property; creating s. 776.001, F.S.; providing legislative finding and intent; providing 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; providing immunity from prosecution for persons acting in defense of life, home, and property from violent attack or the threat of violent attack through certain displays of or uses of force; creating s.76.0011, F.S.; providing definitions; creating s.776.033, F.S.; providing for the justifiable defensive display of a firearm or weapon in certain circumstances; amending s. 776.06, F.S.; limiting a provision authorizing use of deadly force by law enforcement or correctional officers; creating s.775.0878, F.S.; providing an exemption from minimum sentence requirements related to use of a weapon or firearm for persons acting in self-defense or defense of others; authorizing a departure from minimum sentence requirements related to use of a weapon or firearm for persons convicted of certain offenses who meet specified requirements; providing an effective date.

The bill appears to be modeled closely on the Arizona law. It is common sense legislation designed to promote safety. Who could oppose that?

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

Gun Watch

77 Responses to Florida Considers Warning Shot Bill

  1. I know it’s happened before (Massad Ayoob’s documented a case or two) but how often do criminals call the cops on the good guy for displaying?

    • Plenty. Its a common tactic of gang members and other criminals to intimidate people. They pull up to the victim’s house in a car, provoke them into displaying a gun, and then drive off while calling the cops and saying that some crazy person is waving a gun around. The cops show up, question the victim, and if a witness says that the victim brandished a weapon, guess who gets taken away in cuffs?

      • I have not heard of any such tactic. While I don’t work in a huge gang area, we’ve got them. Care to share where you come by this information of such a common thing happening?

        • We had it happen in Arizona, it is what triggered our defensive display law. 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.

        • Maybe “common” is overstating it. But, I live in Oakland, CA and I have spoken with several police officers at the range I frequent. It has happened enough that one has to be careful not to get suckered into it.

        • Spoke with a defense attorney here in Florida that described this very thing. Strongly advised against brandishing, and recommended that you immediately call the police if you do so you’re the first on record.

      • I’m NOT waiting for the perp to show a weapon. To do so is pure stupidity. It could be too late then. Would YOU take that chance?

        I didn’t think so.

    • Listen to the Practical Defense Podcast. He gives several examples of cases like this. He also knows at least one person who lost a self-defense case because the criminals called 911 combined with the fact he didn’t lawyer up & STFU when the cops came knocking. He did some time because he said stuff the wrong way.

  2. I dunno about this one and I am in Florida. Last thing I need is to go into a store and accidentally expose my EDC and the guy behind the counter freaks out and grabs his gun and fires a warning shot. At that point I wouldn’t know what the heck is going on so I draw and return fire. now if they dropped the warning shot (which I don’t believe is a smart thing to do tactically) then I would be more solidly behind it.

    • That logic is very close to the anti-gunners saying that CCW will lead to fender benders and misunderstandings at grocery store check-out lines turning into gun battles in the streets.

    • I’m inclined to agree with Jesse – there’s big difference between someone being threatening you with a gun…and someone’s shirt riding up a little bit.

    • I think if someone shot at me from behind a counter in a store, I might just decide to leave, not start a gun battle.

    • …is this the kind of thing you think happens?

      Also, the law doesn’t do away with menacing and brandishing statutes, it just doesn’t equate a warning shot to deadly force.

    • This is literally the same exact reasoning used by anti’s when they claim that the “streets will run red with blood” if X, Y, or Z concealed carry law is enacted. And if someone fires a warning shot because your gun displayed a bit they might not fall under this law if you did nothing other than let your shirt slip up and there are witnesses saying that’s what happened. If someone is going to act like that then they would regardless of this law or not, people’s reactionary behavior really isn’t too heavily reliant on a new law or two.

  3. Imagine the situation where one person fires a ‘warning shot’ and the other person is armed and fires back. A gun being displayed, much less fired, is enough to reasonably put one in fear of imminent serious bodily harm. How was the person supposed to know WITH CERTAINTY that its a warning shot vice a miss, or an earlier than intended discharge? It obviously is going to be before the point the person feels they have to shoot the other person, so, are they truly in fear of imminent serious bodily harm? Will the object of the warning shot/display feel the same way– I haven’t crossed the line to where this person should be feeling threatened, he’s escalating to deadly force!!!!

    And depending on the enviornment, night, indoors etc. the shot could easily deafen the folks in the incident- now they can’t hear a shouted warning or direction.

    I guess the law is assuming the person firing the warning shot is still responsible for where that bullet goes. I don’t personally like the idea of encouraging warning shots.

    • I believe that warning shots are a bad idea and should be unnecessary. If you are in a situation where you feel it necessary to point your gun towards someone and fire the warning shot then you should also be in a position where to hit the guy is justified (because even a warning shot can miss and actually hit him).

      While I can understand that given the legal turmoil you will undoubtedly endure following even a good shoot and the desire in that case to not actually shoot the guy to make him go away, if I were to feel the necessity to fire a warning shot I would most definitely report it as a negligent discharge or a miss, never an intentional warning shot. YMMV.

  4. Presenting the firearm without adverse legal consequences-well and good. I once had to prosecute a nice lady for misdemeanor “menacing” when the victims said she drew a gun when she didn’t need to. I would support such a law that would keep honest or unskilled good people out of the legal system.
    As for warning shots- no way! The bullet has to land somewhere! As an auxilliary officer in Ohio, my department’s policy was absolutely no warning shots. In training , they told us of an officer in a nearby town who thought he’d get by his department regs by firing his warning shot into the ground. The round struck a rock, came back and bit him in the butt!

    • Was he firing the shot behind himself? If you fire a shot to your front, you’ll need as least a double ricochet to hit yourself in the butt.

      • Say he fires it to the side. If it hits a rock close by, lead spatter or rock fragments could easily be blasted straight back and perforate one of his hams. (Picture how water splashes straight up if you drop a rock straight down into it.)

  5. As a Florida resident I would love to be able to tell my representatives about this bill so they can properly vote on it.

  6. In every defensive shooting class I’ve taken, the instructors have all told me that once that firearm leaves the holster the situation is beyond control and there are no warning shots. If I need to get physical with somebody, I sure as hell will.. I’ve got plenty of Jiujitsu / Judo / Akido underneath my belt to handle my own and ruin the day of somebody without the use of a weapon. If I have to draw my firearm, the situation is already MUCH too far gone to even think of a warning shot, the persons’ actions -must- be stopped -that very instant.-

    • What would you do in the carjacking case that just happened in NJ? Say if the two guys approach menacingly and 10 feet away tell you to give them your keys? Back away? Jujitsu? Run? Hand them the keys?

      I would think in that exact scenario I’d draw and aim, and if anything other than their immediate retreat followed, fire. If they got saucer eyes and turned tail, reholster and exit.

  7. In most states then without this law, is it the only legal safe thing to do, is shoot, anytime you draw?

    If an attacker comes to a screeching halt upon seeing your weapon, then reasonably you are no longer under threat and should not fire. It does seem silly to require the victim to shoot as proof of perceived threat and why one should be in legal danger for stopping the threat by psychological incapacitation and not by physical incapacitaion or death of the attacker.
    Other than hammers want hammer and prosecutors want to prosecute, what is the downside argument not to have a law like this in place?
    Warning shot I think is a different issue, if you have to fire, your over the threashold of a peaceful non physical resolution.

    • I was thinking along the same lines. “If you have to draw, shoot” seems sensible until you break it down a bit.

    • I seriously wish we had a law like this in WA, it is way too east to get busted for brandishing. Here you better not draw unless you are shooting, and you better not shoot unless you are fully “neutralizing” the threat or threats. Otherwise you can be liable for damages and/or medical expenses, this is one reason why many police agencies usually train to fire until slide-lock.

    • I cannot speak to warning shots (I believe any shot is considered use of deadly force and must be justified as such), but even in California the display of a firearm is excusable when in self-defense or defense of another and the threshhold is not at all the same as the actual use (in fact brandishing is a misdemeanor, 3 months in jail offense for a gun, 1 month for any other “deadly weapon”)

      Is this law really necessary? Or is it just changing warning shot legality?

      • In Florida if you draw a weapon and point it at someone, you’re going to jail – for a few years – unless you are defending yourself from a lethal threat. I assume this proposal attempts to offer a bit of counter balance.

        Not a fan of warning shots, myself.

    • In Texas, the legal justifications for displaying or threatening use of a firearm is identical to those of discharging said firearm; namely, self-defense or defense of another person or property. There are a few more details, obviously, but the point is that display/threat = discharge. If you don’t have legal cause to shoot, you don’t have legal cause to threaten to shoot, either. There’s no requirement that you must shoot, once you’ve drawn, but rather that you *could* shoot, since the threshold for drawing alone is the same as drawing and shooting.

      The idea behind that single threshold is that you don’t want to encourage people to draw or “defensively display”, as is apparently the new phrase, unless they really are in serious danger. If the defensive display standard is lower, then you may have otherwise minor exchanges escalate into true emergencies. If the displayer had misinterpreted the situation and wasn’t really being threatened, then there was no real need to display. However, the act of displaying or firing a warning shot is a pretty unambiguous action; causing the other party now to fear for *their* life and to respond. I’m not saying that’s how it would always play out, but that’s at least some of the reasoning behind it.

  8. I’m more concerned that it would lead to prosecutions where the good guy is being sued because he DIDNT give a warning shot. How was “my sweet baby boy” (actually a thug) supposed to know the good guy was serious?

    • This, so now in court you’re not only going to have to show you were in fear of death/ severe bodily harm but you also didn’t have time or could not fire a warning shot

    • That’s’s not how it works in FL, if it’s ruled a clean shoot you’re protected from civil action by the family of the ‘other party’.

      If it isn’t ruled a clean shoot, well you have bigger problems.

    • During my time in the military, I was told several times that the warning shot went between the running lights, and the kill shot into the air. Who can tell for sure which bullet was which, and protecting certain equipment was a serious matter.

  9. This looks like a good law in terms of protecting someone who is acting in legitimate self defense. I would only caution that firing a warning shot comes with it’s own set of dangers. People need to be educated that firing a shot into the air, currently illegal in Florida, could result in someone getting injured or killed by the falling bullet. Likewise firing a warning shot into anything hard could result in an equally catastrophic ricochet. That pretty much leaves soft ground as the only reasonably safe medium. Hopefully just displaying the gun would be enough to dissuade the bad guy. If not, well, that’s what the trigger’s for.

  10. Virginia code § 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty
    “this section shall not apply to any person engaged in excusable or justifiable self-defense.”

      • Far from clear. Just because one section doesn’t apply does not mean that the “brandisher” is home free, as there are plenty of other things he can be charged with.

        • It was edited for brevity. full text below:
          “A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.”

        • Understood, C, but it still doesn’t insulate the “brandisher” from criminal prosecution and does not immunize him from civil actions.

  11. Warning shots are bad idea. When the SHTF you need to make every round count. A warning shot just proves that the situation hasn’t deteriorated to the point of no return.
    “I shoot a bullet into the air, where it lands, I know not where”- J. Biden (2013)

  12. I dislike the idea of warning shots, but I do like the idea of a law that decriminalizes brandishing. Something along the lines of what C quoted from the Virginia statutes above would be fine.

    I’ve never thought it made sense that legally, my only two options are “keep it holstered” and “shoot the guy,” when we know for a fact that a great deal of “defensive gun uses” don’t actually involve firing a shot.

    • I felt the need to unholster my gun 2 times in 30 years of carrying a weapon.
      Last time about 2 months ago outside of a Home Depot, next to my store.
      I was covering a shoplifter and the stores theft prevention officer.
      They were engaged in a wrestling match so to speak. The store guy beating the crap out of the shoplifter so in order to get them both to stop.
      I pulled out my 45.
      Wise move or not??
      2 seconds later I hear a voice saying PUT THAT AWAY!!!!!!.
      A 6 foot 5 inch Deputy sheriff……finally shows up and pulled them apart.
      He could have made trouble for me but didn’t.
      Im sure where you are Matt, everything depends on the situation as it progresses,
      One doesn’t always have to fire his/her weapon.
      Sometimes for us……displaying it, just being able to show it is a good thing I feel.
      Warning shots??
      No way.

  13. If the situation is so serious that you need to draw your weapon you better not be fooling around with rationale. Shoot two warning shots to the chest and then find out their intent.

  14. I would never fire a warning shot to scare off a BG. I have a voice and that’s all the warning that an attacker may receive.

    Still, I don’t want a defender imprisoned for any self-defense shooting, whether it’s a warning shot or an expertly executed Mozambique.

  15. I think a lot of people have a single scenario in mind when they think of a “warning shot”, that being a means to intimidate an adversary who can clearly see that you are armed. That is not always the case though. It may be dark and you may not even know how many attackers you are facing. You may not know what is behind your attacker, and they might not be able to see LCP you’re packing. There’s a reason God made gun powder loud, the same reason he put rattles on snakes. The whole neighborhood will be on alert as well as the bad guys. I’m not about to Monday morning quarterback someone else who believes that in that particular circumstance his safety was better served by punching a hole in the ground. I bet George Zimmerman AND Trayvon Martin both wish Mr. Z had just fired a warning shot before the “whoopass” commenced.

  16. Floridians are not authorized to carry for deterrent purposes, the privilege to carry is concealed only once attack has begun. Although a person needs to take responsibility for any warning shots fired, I really like this bill. After all, police can point guns at us for any and all reasons. After all, Officer Safety.

  17. I don’t know about this one- displaying one’s firearm is an instant escalation of a conflict. Firing a “warning shot” (a shot designed to miss the the target and continue for an unknown distance towards unknown backstops) is moreso.

    Don’t shoot unless you know what you’re pointing at and you’re willing and able to destroy it.

    Firearms = deadly force. It should be written in stone.

    • Display of weapon is not instant escalation. Pointing and firing are. If Zimmerman would have displayed hugs weapon pre conflict Martin would have ran home or pissed himself.
      Most criminals,even if armed will not risk attacking an armed victim. Why take the risk, when there are so many un-armed people to victimize?

  18. Im still waiting for open carry ….not going to happen anytime soon.
    At least they covered brandishing recently .

  19. A couple years ago someone broke into my house. I happened to be home and luckily accessed my gun as the bg was crawling through the window. I ordered him not to move but he decided to exit immediately. As the bg was running away down my driveway I fired a “post-warning” shot straight into the grass of my front yard (yes – I know the 4 rules including knowing target and whats behind it) to send him a clear message. I then went back into my house and dialed 911 hoping the police would catch the scumbag – unfortunately, they didn’t. Upon reflection I understand it was not the right thing to do.

    This was in CT before the Sandy Hook shooting. I was very lucky as the police let me slide on that. If that event happened today I feel the outcome would have been much different in terms of potential arrest, loss of my pistol permit, legal system and cost for a lawyer.

    Just something to think about if you run into this kind of a situation…

    • Worst case if you shoot into the ground as the bad guy is running away, the police can cite you for the loud noise (disturbing the peace). It is just a ticket with a fine. If you are unfortunate to live in an area that prohibits the discharge of firearms in city limits or something like that, the result depends on your local law.

      Having said all that, the police cannot charge you with anything if there is no compelling evidence. Unless a neighbor saw you shoot into the ground and is willing to say that to the police, they will not charge you with anything unless you open your yap and tell them about it. So once again, the advice to exercise your Fifth Amendment right to remain silent is priceless.

      So what if a neighbor calls the police and reports hearing a gunshot. It might have been the bad guy shooting at you as he ran away. It might have been a car backfiring. Someone could have set off a firecracker or 2-liter soda bottle bomb. Don’t volunteer anything to the police.

  20. The rationale is that it’s better to allow the defensive display of a firearm to prevent a crime and prevent someone from being shot, than it is to require that the gun remain hidden until it *must* be fired in self defense.

    Better for whom?

    • “Better for whom?”

      Better for the aggressor, who runs away and does not get shot, who maybe now thinks twice about attacking people.

      Better for the victim, who does not have to shoot someone, and go through all the psychological, legal, and social mess that a shooting almost always puts someone through, no matter how justified. Less chance of being injured for the victim, because a number will be injured because they waited too long.

      Maybe…not better for society, if a chance to rid society of a vicious predator is missed…

  21. I don’t like the warning shot idea because you don’t know where that bullet will go. I’ll accept that risk, providing the shooter isn’t outright negligent or reckless, if there’s a provable reasonable fear that one was in serious danger, but not just to scare someone off. At least not within city limits.

    Defensive display is more difficult. I know for a fact, um, I mean, I know, hypothetically, yes, hypothetically, that a defensive display or even just resting one’s hand on an obviously concealed firearm can be sufficient to shut down a developing situation. But that’s me, I mean, that’s the hypothetical person in the completely made-up scenario I’m writing about. What would happen with someone else? Could they misinterpret the original situation, defensively display against a non-threatening person, and thereby provoke that person into fearing for their life and escalating all into a now-serious situation? I don’t know. I’ll have to think more about this, hear some more arguments around it, and if there are relevant facts at hand, review those, too.

  22. I also don’t like the idea of a “warning shot.” It’s essentially a violation of the “Don’t shoot at anything you don’t intend to destroy” rule But I do like the idea of decriminalizing “brandishing.” Pull it out and point it, with your finger off the trigger, so that the gun doesn’t accidentally fire itself, and if that doesn’t stop the perp, then shoot to stop the threat, I’d think.

    Not having had any experience in the situation, my opinion is probably worth about what you just paid for it. 😉

  23. The more I think about it and the more comments I read, the more I am NOT liking the idea of a warning shot.

    I have to believe that in every state in the U.S., pointing a firearm at another person is an act of lethal force whether you pull the trigger or not. And I also have to believe that in every state in the U.S., lethal force is legally justified if a reasonable person is reasonably in fear of an imminent threat of death or great bodily harm. With those two assumptions, I don’t see how this newly proposed Florida law would be necessary.

    And consider an uninterested party who happens to observe an exchange between two people from a distance. All of a sudden one person pulls out a firearm and shoots the ground. Now look at all of the uncertainty for the uninterested observer:
    (a) Did the person shoot at the ground on purpose? On accident?
    (b) Was the person trying to shoot the other person and missed?
    (c) Was the shooter the aggressor? Or was it lawful self-defense?
    (d) How can the uninterested party assist other than to be a “good witness”?

    I don’t believe in gun play unless there is an imminent threat of death or great bodily harm. And when there is a credible, reasonable imminent threat of death or great bodily harm, pointing a firearm at someone and not pulling the trigger is legally justified. Heck, even if pulling the trigger only is legally justified, you can tell the police that you tried to pull the trigger and it didn’t work. (Apparently, in the heat of the moment, you must have been trying to pull the trigger guard rather than the trigger with your finger. Go figure.)

  24. I can see the merits of such a law, but I agree with others that the warning shot portion needs more work. A clause needs to be added defining what constitutes a justifiable and safe warning shot. The way the law is written now you have not actually used deadly force if your shot was fired with the intent of being a warning shot and would thus be immune from prosecution if say your bullet richochets and hits an innocent bystander. I think you still need to be responsible for that bullet even if you intended it to be a warning shot.

  25. I hope if that bill gets passed the first person that gets hit with a “warning shot” bullet is the author or the one that made it law.

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