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Criminal Assault, the Threatened Use of Force and Warning Shots

| Apr 6, 2020 | Criminal

In the realm of criminal cases one way a defense attorney can protect a client is to argue self-defense. Some years ago, there were reports of a ‘Warning Shot Bill’ that would allow Floridians to fire a warning shot. There is no law that specifically ‘allows a warning shot’. What in the stand your ground law caused the confusion that has me answering similar questions years later?

Initially, the stand your ground law in Florida was silent as to whether a threat to use force was included. That meant that people, who chose to make a threat to use force and would have been immune from criminal prosecution had they actually used force, were instead being sent to prison. The law did not allow for immunity from prosecution for threats, just the use of force. For example, a person who killed an aggressor could be immune from a murder prosecution but in the same situation, having the restraint to not kill would send that same person to prison.

Thankfully, that omission was filled in 2014. The Legislature found that “persons have been criminally prosecuted … and have been sentenced to mandatory minimum terms of imprisonment for threatening to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.” Therefore, the legislature, added the words “or threatening to use” and “or threatened use” to the provisions of law related to the justifiable use of force. They did not add the words “warning shot(s)”. In my opinion, the law will NEVER say that a person can fire a warning shot, but one day it may say that a person cannot.

The law in threatening or using deadly force is generally that a person is justified only if they reasonably believe that such conduct is necessary to prevent the imminent commission of a forcible felony. “Forcible felony” is defined as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

Whether a warning shot is justified is for the judge or jury to decide. Every case is different, and no lawyer can guarantee what a trial judge or jury will eventually decide. Criminal and civil cases involving the use or threatened use of deadly force require significant attention. To hire a lawyer, please click, call or fill out the form.

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