Firing A Warning Shot In Florida
Florida recently enacted a new so-called “warning shot” law. Basically, it allows for people to avoid criminal prosecution if they fire a warning shot or threaten to use a gun in order to defuse a hostile situation. At first glance, the “warning shot” law makes sense, right? After all, why kill or harm someone when you can end a confrontation some other way? Wrong!
The problem is that there is no such thing as a warning shot. It is a moot point under the law. The entire idea is hogwash. It has always been legal to do whatever you have to do to defend yourself, as long as it is done in fear of death or serious bodily injury. We don’t need a special law to tell us that. But prosecutors have other terms for these so-called warning shots: murder, attempted murder, aggravated battery, aggravated assault, improper discharge of a firearm, and/or improper display of a firearm, just to name a few. Pulling out a firearm during an argument is never a good idea, unless you are really acting in self defense. It can lead to serious legal troubles and a lengthy prison sentence.
The warning shot law was inspired by the case of Marissa Alexander, who was arrested in 2010 for allegedly firing a warning shot in the direction of her abusive husband during a domestic argument in their home. She claims she was trying to escape the locked garage so she retrieved a gun from a vehicle and fired a warning shot in the direction of her husband and his two minor children in an attempt to get away. Ms. Alexander’s husband had a documented history of violence against her, and he admitted making death threats to her if she tried to leave him. Nonetheless, she was arrested and charged with three (3) counts of aggravated assault.
Ms. Alexander argued self defense under Florida’s Stand Your Ground law. A stand your ground law allows for the use of deadly force in self defense without the duty to retreat when faced with a reasonable perceived threat. Despite her claim of self defense, a jury found her guilty of all counts at trial. After all the evidence presented at trial, the jury rejected Ms. Alexander’s claim that she acted out of genuine fear for her life.
Sadly, the judge sentenced Ms. Alexander to 20 years in prisonunder Florida’s strict firearms laws even though she had never been in trouble (her conviction was later overturned on appeal on an unrelated issue and she was resentenced in January, 2015, to three (3) years plus probation). Florida’s 10-20-Life law
provides for minimum mandatory prison sentencing for certain crimes involving firearms. If you pull out a gun and shoot, you are looking at 20 years in prison, at a minimum. If you shoot and actually hit someone, you’re facing 25 years to life in prison. There is no way around it and the judge has no discretion. There are also three (3) year minimum mandatory sentences for crimes involving merely displaying a gun, even if you don’t shoot. The law is very harsh and unforgiving. Hence the coined phrase: “Use a gun, and you’re done!”
Ms. Alexander’s case made national news due to the severity of Florida’s sentencing laws. There has been a lot of controversy surrounding self defense and firearms laws in general. The laws are complicated and not easily understood by people not involved in the criminal system. Florida has received much criticism for its “Stand Your Ground” law, arguing that it allows for a “gun slinging free for all” with everyone shooting at each other every time an argument erupts, which isn’t the case. The law is not black and white and every case is unique. As we saw with Ms. Alexander, you still have to prove legal self defense in order to win. And if you don’t, there are serious consequences.
Stand your ground and self defense cases are generally difficult to win. The person arrested for a crime has the burden to convince a jury, with 20/20 hindsight, that he or she acted in reasonable fear of harm or death. Florida’s law regarding justifiable use of force is as follows:
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.
So, it’s simply not a matter of acting whenever you feel threatened. You must prove that you had a reasonable fear of death or great bodily harm. This is why firing a warning shot is a dangerous game. It decreases the credibility of aself defense claim. In trueself defense situations, an attack only lasts mere seconds. If you had time to pull out a weapon, brandish it, make a verbal warning and fire a shot, then chances are you had time to escape the situation and avoid the incident entirely. Also, most deadly attacks occur within a few feet. It will be difficult to proveself defense if an attacker was standing over 10 feet away from you. Pulling out a weapon may actually escalate the situation, and suddenly the victim turns
into the aggressor. The presence of a firearm could turn a mere verbal argument into a physical and potentially deadly confrontation. Then who is the real victim??
Lastly, firing a warning shot has obvious potential hazards. If a bullet goes up, it must come down. It could hit an innocent bystander. A shooter can be charged with killing or hurting someone, even if that person wasn’t the intended target. All of these factors come into play when deciding whether the warning shot was really justified or not.
In short, don’t draw a firearm unless you honestly believe you are in immediate danger of death or great bodily harm. At that crucial moment, you should do whatever it takes to stop the threat. The warning shot law is irrelevant at that point. Marissa Alexander argued self defense and the jury did not believe her. The special “warning shot” law doesn’t amount to a hill of beans. It’s either self defense or it’s not. Having this special “warning shot” law on the books will only confuse people and make them erroneously believe their actions are legal when they may in fact be committing a serious felony.
The best advice is as follows: Just because you have no duty to retreat, it doesn’t mean that you shouldn’t if you can. If you are attacked and can safely escape without harm to yourself or others, then you should do so. No matter how much you feel your attacker deserves it, resist the urge to get involved in a physical confrontation. It prevents you from having to explain yourself to law enforcement later on and justifying an otherwise questionable situation.