SB-448 enhances Florida self-defense law by treating threat and use of defensive force the same, allowing expunction of criminal history

Today the Florida Senate voted overwhelmingly (32 to 7) to pass SB-448, the state’s so-called “warning shot” bill. The same bill was passed overwhelmingly (93 to 24) by the Florida House, as HB-89, just two weeks. As a result, the bill now proceeds to the desk of Governor Rick Scott, who seems certain to sign it into law.

Much of the discussion of SB-448 is replete with terms like “warning shot” and “stand-your-ground.” In reality, however, the law does not even mention the term “warning shot,” nor does it make any substantive changes whatever to Florida’s stand-your-ground law.

So, what exactly does SB-448 do (note: the full text of the proposed bill is embedded at the bottom of this post, but all hyperlinks are to the statutes as they currently exist prior to modification by SB-448)? Here’s a bulleted list, with details below. In summary SB-448 provides:

No statutory authorization for firing “warning shots” —indeed, the statutory language would deny justification to any “warning shot” that “poses a threat to public safety,” which would seem to apply to all but the rarest circumstances. [CORRECTION (6/26/14): The “poses a threat to public safety” language references possible exemption from Florida’s “10-20-Life” law, not warning shots. –AFB]

[CORRECTION (6/26/14): The “poses a threat to public safety” language references possible exemption from Florida’s “10-20-Life” law, not warning shots. –AFB] No substantive change to stand-your-ground.

Where the use of force would have been lawful in defense of a person, the mere threat is also lawful in defense of a person.

Where the use of force would have been lawful in defense of a home, business, or occupied vehicle, the mere threat of force is also lawful in defense of a home, business, or occupied vehicle.

Where the use of force would have been lawful in defense of personal property or to prevent a forcible felony, the mere threat of force is also lawful in defense of personal property or to prevent a forcible felony.

Where immunity would attach to a use of force, immunity will similarly attach to a mere threat of force.

Allows for expunction of criminal history associated with a lawful act of self-defense.

The Legislative Statement: The Problem to be Addressed

The bill is prefaced with a legislative statement that notes that people have been criminally prosecuted and sentenced to mandatory minimum sentences under Florida’s “10-20-Life” statute for having threatened the use of force in circumstances where an actual use of force would have been justifiable under Florida’s self-defense laws (chapter 776).

In essence, the legislature is identifying as a problem the fact that prosecutors are sending defendants to prison for long periods of time for having threatened force, whereas if those same defendants had actually used force their actions would have been lawfully justified.

This would seem to create an imprudent incentive where one is encouraged to use deadly force when the mere threat of deadly force might otherwise have been sufficient to secure safety.

The House version of this bill, HB-89, contains a legislative statement that provides insight to the perceived problems this bill is intended to address. The Senate bill, SB-448, lacks this legislative statement, but the language is otherwise identical between the two, so the statement remains useful in terms of gaining insight to what the legislature intends:

Provide criminal and civil immunity to those who threaten to use force if the threat was made in a manner and under circumstances that would have been immune under chapter 776.032, the state’s self-defense immunity statute.

In other words, if you would have been entitled to self-defense immunity for having actually shot someone in lawful self-defense, you are similarly entitled to self-defense immunity under those same circumstances for merely threatening to shoot someone in lawful self-defense.

Clarify that those who threaten to use force may claim self-defense if the threat was made in a manner and under circumstances that would have been justifiable under [Florida’s existing self-defense law], had force actually been used.

If you would have been lawfully justified in actually shooting an aggressor, under those same circumstances you would be lawfully justified in merely threatening to shoot someone.

Ensure that those who threaten to use force in a manner and under circumstances that are justifiable under [Florida’s existing self-defense law] are not sentenced to a mandatory minimum term of imprisonment pursuant to [Florida’s “10-20-Life” statute].

If someone acted in self-defense they ought not to be subject to “10-20-Life.” Of course, if someone acted in lawful self-defense they ought not to be subject to any criminal sanction, whatever.

The real point of clarification that needs to be made to avoid travesties of justice are really addressed in the two points above—that the mere threat of force should be treated identically under the law of justification as is the actual use of force. If one is done in lawful self-defense, the other should also be deemed lawful self-defense. If one is not done in lawful self-defense, the other should also be deemed not lawful.

Encourage those who have been sentenced to a mandatory minimum term of imprisonment pursuant to [“10-20-Life”] for threatening to use force in a manner and under circumstances that are justifiable under [Florida law] to apply for executive clemency.

This final paragraph of the legislative statement would seem to have two possible consequences.

First, those who were mistakenly convicted because their threat of force was deemed outside the boundaries of Florida’s self-defense law under circumstances where a use of force would have been justified. These individuals should simply have their convictions pardoned, or at worst vacated with a re-trial in which the proper legal standard is applied.

Second, those whose conduct was such that under the circumstances their actual use of force would NOT have been justified as self-defense, and therefore their threat of force could not be justified as self-defense. Under current Florida law, if their conduct involved the use of a gun they are subject to “10-20-Life”.

In most of these cases, of course, we’re dealing simply with someone engaged in criminal activity whose conduct falls far outside the boundaries of justification. In a minority of cases, however, we are dealing with defendants who legitimately believed they were acting in defense of themselves or another innocent person, but who inadvertently violated one or more of the five elements of self-defense law.

For this latter group, because their conduct was not actual lawful self-defense, some criminal sanction seems warranted. Perhaps, however, they should not be subject to Florida’s very severe “10-20-Life” statute, under which the firing of a harmless warning shot in an effort to deter actual harm to persons must be punished with a 20-year mandatory minimum sentence.

With that intent set out by the legislative statement, how does SB-448 go about achieving those objectives in a nuts-and-bolts way?

Modifying 775.087: “10-20-Life”

First, SB-448 modifies Florida’s 775.087, “10-20-Life” statute to exclude cases of aggravated assault where a court makes a finding that:

The defendant had a good faith (even if erroneous) belief that they were acting in lawful self-defense; The aggravated assault was not committed in the course of another crime; The defendant did not pose a threat to public safety; and The totality of the circumstances involved in the offense do not justify the imposition of a “10-20-Life” sentence.

Make particular note of condition (3)—this would explicitly exclude “warning shots” that represented a threat to public safety. Contrary to those who claim that SB-448 advocates or authorizes “warning shots,” this bill actually makes clear that such “warning shots” would be acceptable only under circumstances where discharging a round would “not pose a threat to public safety”.

Simply firing into the air in an urban or suburban setting, for example, clearly presents a threat to public safety, as would most “warning shot” scenarios that come to mind. Furthermore, I’ve had personal communications with people serving long prison sentences who thought firing into the ground was a “safe” thing to do—only to discover that their bullet skipping off the ground retained more than enough energy to kill a person.

Modifying 776.012: Use of force in defense of person.

SB-448 then goes on to modify one of Florida’s core self-defense statutes, 776.012: Use of force in defense of person. This statute covers the use of both non-deadly and deadly force in defense of self or others.

Here SB-448 essentially simply incorporates the phrase “or threatened use of force” wherever the statute currently states “use of force.”

Note in particular that the modified version of 776.012 fully retains stand-your-ground—indeed, effectively expands stand-your-ground to include the lawful threat of force, in addition to the lawful use of force.

“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.”

(Emphasis added.)

Modifying 776.013: Home protection; use of deadly force; presumption of fear of death or great bodily harm.

Next, SB-448 modifies Florida’s defense of home statute, 776.013, Home protection; use of deadly force; presumption of fear of death or great bodily harm, which creates a “presumption of reasonable fear” in the context of acts of self-defense in your home or occupied vehicle (e.g., carjacking).

Again, SB-448 modifies this statute primarily by incorporating the phrase “or threatened use of force” whether the statue currently states “use of force”.

There is one change to SB-448 that may well be distorted by the anti-self-defense crowd as a “win” in their fight against “stand-your-ground.” Section (3) of 776.013 is where “stand-your-ground” is addressed in the context of home protection.

The current form of the statute provides that a person “who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground.”

The proposed change would delete the phrase “who is attacked in any other place where he or she has a right to be,” and replace it with “who is attacked in his or her dwelling, residence, or vehicle.”

Is this a change to Florida’s “stand-your-ground” law such that “stand-your-ground” is now limited to your home, business, and occupied vehicle?

Absolutely not. Keep in mind that 776.013 only covers self-defense within the home, business or vehicle in the first place. Within that context, you can still stand your ground.

If you are outside of your home, business, or occupied vehicle, then 776.013 is not relevant, and you are relying upon 776.012: Defense of persons, to justify your use of force. There, “stand-your-ground” continues to apply everywhere you have a right to be.

So, no substantive change to “stand-your-ground” at all.

Modifying 776.031: Use or threatened use of force in defense of property.

In the context of 776.031: Use or threatened use of force in defense of property, SB-448 might seem as if it were actually making a substantive change to the currently existing statute, the present title of which refers to the use of force in defense of other persons, not of property.

The actual text of the current statute, however, is primarily about the protection of personal property—for our purposes, property other than your home, business, or occupied vehicle as is covered by 776.013, above. For the protection of personal property only non-deadly force may be used. Deadly force can be used in such cases only when necessary to defend against an imminent forcible felony, which felony necessary implies a threat to an innocent person.

Again, SB-448 essentially changes the statutory language simply to include “threat of force” along with “use of force.”

Also again, “stand-your-ground” is retained, and prominently so:

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 . . .

(Emphasis added.)

Modifying 776.032: Immunity from criminal prosecution and civil action for justifiable use of force.

776.032: Immunity from criminal prosecution and civil action for justifiable use of force is Florida’s self-defense immunity statute. Here SB-448 simply incorporates “threatened use of force” alongside “use of force.” Unlike as reported by some sources, SB-448 does not in any way change the law on how and when police may investigate in the aftermath of a self-defense shooting. They may (not must) still investigate using all standard procedures, and they are prohibited from arresting the defender unless there exists probably cause that their use of force was unlawful.

In fact, probably cause is a very low threshold, and even under existing law you will recall that George Zimmerman was handcuffed and detained by the Sanford Police Department from the moment they arrived on scene until the next day (during which time he was fully cooperative with police questioning).

Modifying 776.041: Use of force by aggressor.

776.041: Use of force by aggressor is the Florida statute that makes clear that self-defense is not available to a person who was an aggressor, but which also provides the means by which an initial aggressor can “regain their innocence,” and their right to justify their use of force as self-defense.

Here, SB-448 simply incorporates “threat of force” alongside “use of force.”

Modifying 776.051 and 776.06

These sections have to do with resisting arrest and use of deadly force by law enforcement, and again SB-448 simply incorporates “threat of force” alongside “use of force.”

Creating 776.09: Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.

This is an entirely new Florida statute, and an interesting one at that.

It provides that where a state attorney dismisses an official charge of wrongful use of force, or decides to not seek such a charge on the basis that the use of force was lawful self-defense, that they are to document that decision in writing and retain a copy of that writing in their official records.

It further provides that were similar action or decision is made by a court, that the court document that decision in an order or memorandum, and also retain a copy of that in their official records.

Under either of those conditions, the person who used force may apply for a certificate of eligibility to have their record expunged of the associated criminal history record.

Really, all this really provides is that if it turns out you did nothing wrong in using force against another, there’s no reason why you should have to live with the existence of an arrest record, fingerprints, mug shot photos, and all the other detritus of having been ensnared in the criminal justice system through no fault of your own. This seems imminently reasonable.

Modifying 943.0585: Court-ordered expunction of criminal history records.

This statute provides the nuts-and-bolts process for how one goes about having a criminal record expunged. It is modified by SB-448 to incorporate the allowance for expunction of a criminal record in the context of an act of lawful self-defense, as described above in the newly created 776.09.

Essentially, this statute is modified to allow for the expunction of a criminal record when the applicant meets the conditions of 776.09, and provides a copy of the state attorney’s or court’s finding of lawful self-defense as well as a sworn affidavit by the applicant along with an application for expunction.

This section does not provide an absolute right to expunction—this is still a matter for the court’s discretion—but it provides a statutory process for seeking expunction.

And that’s it. Here’s the embedded SB-448 as it was passed by the Senate today by a 32 to 7 vote, and how it will appear on the Governor’s desk for his all but certain signature:

–-Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.



