100 Hypothetical Outcomes in “Warning Shot” Cases, and Some Rambling Implications for Self-Defense in Florida

Post Date: February 22, 2014

Assume 100 “Warning Shot” cases, i.e., cases in which a person discharges a weapon in what that person alleges was either self-defense or defense of a third party. Given what we know about how self-defense cases work in Florida, what are the plausible outcomes for those 100 cases?

The Tampa Bay Times analyzed more than 200 “Stand Your Ground” self-defense cases, including the outcomes of those cases. Applying their analysis to our warning shot cases provides a rough estimate of how those cases would turn out.

The Times found that in 35% of cases, prosecutors declined to press charges. In 23%, a judge dismissed the case after an immunity hearing. 16% of cases were disposed of by plea bargains. 10% were acquitted by juries. And 16% were convicted after a trial. 

Using these numbers, out of 100 warning shot cases, 35 will not be charged, 23 will be dismissed by a judge, 16 defendants will accept plea bargains, 10 will be acquitted by a jury, and 16 will be convicted. 

As we know, when prosecutors reject a self-defense claim, they charge “warning shots” as aggravated assaults. And under Florida’s “10-20-Life” law, the discharge of a firearm during the commission of aggravated assault carries a 20-year mandatory minimum prison sentence.

Recall that one of the defenses of mandatory minimums is that they provide “uniformity” in sentencing. Similar criminal activity, it’s argued, should yield similar sentencing outcomes. Let’s put that theory to the test. Recall that in our 100 cases: a firearm was discharged; no one was injured; and every defendant alleges the shot was fired in self-defense or defense of another. While the surrounding events might differ, the fundamentals between the cases are practically indistinguishable. So, what are the sentencing outcomes in our 100 warning shot cases?

68 of the cases yield no punishment at all, since they were either not charged by a prosecutor, dismissed by a judge, or led to an acquittal by a jury. 

Of the remaining 32, half are disposed of by plea bargain, and half are convictions after trial. Most of the plea bargain offers I’ve come across in warning shot cases are around three years, so let’s say 16 defendants will be sentenced to three years in prison.

The other 16 defendants who are convicted at trial will go to prison for 20 years.  

100 cases with largely indistinguishable facts; wildly different sentencing outcomes.

What distinguishes the 16 defendants who get three years from the 16 defendants who get 20 years? What rational basis grounds that disparity  in statute? Are the latter 16 inherently more vicious? Was their criminal activity inherently more severe? Do those latter 16 represent a particularly dangerous threat to public safety? Are they more likely to commit future crimes?

The only meaningful distinction between the two groups punished for warning shots is that the defendants in the first group accepted a plea offer from a prosecutor, and the defendants in the second group exercised their constitutionally guaranteed right to trial. Should the exercise of constitutional  rights come with a penalty of 17 years in prison? What legitimate criminal justice purpose does that serve?

Further, given that 33% of self-defense cases for which prosecutors bring charges are dismissed by judges or result in acquittal, what are the odds that all 16 of the defendants serving 20 years are actually guilty? After all, who is most likely to demand a jury trial? Isn’t it the defendant who is firmly convinced of her innocence? Doesn’t the defendant who knows he’s guilty gleefully accept the plea bargain? If so, it seems the mandatory minimum actually creates the perverse and astonishing consequence that the unambiguously guilty are likely to be released earlier than the possibly innocent.

It is clear that the (wholly unintended!) application of 10-20-Life to cases in which reasonable people can’t even agree on whether a crime has been committed has led to arbitrary, indefensible outcomes while providing nothing by way of additional public safety benefit. (If you disagree, tell me: who is made safer with Lee Wollard behind bars? Ronald Thompson?) There is no reason whatsoever  10-20-Life should apply to aggravated assault cases where self-defense is a factor. Reform the damn law.

~Greg Newburn, FAMM Florida Project Director

Leave a Comment

Note: All comments are held for moderation before being published.