A Brief Case for Gun Sentencing Reform in Florida

Post Date: February 11, 2013

recent case out of South Florida highlights the need for immediate gun sentencing reform here in the Sunshine State. On July 12, 2011, a 48-year-old Indian River County resident, Arzie Tory, was assaulted on his way to work. Tory said he was “experiencing weakness from diabetes” when he “took a punch to the eye and fled to his car, where he pulled out a semi-automatic handgun and warned the other man to stay away.” 

As we have seen too often in Florida, for exercising his Second Amendment rights in defense of himself, Tory, “who was bleeding from near his eye, was charged by the Indian River County Sheriff’s Office with aggravated assault with a deadly weapon.”

Thanks to Florida’s so-called “Stand Your Ground” law (which eliminates the “duty to retreat” for law-abiding citizens who face violent attacks), Mr. Tory’s attorney was able to file a motion for immunity from prosecution. Representative Dennis Baxley (R, Ocala), who authored the “Stand Your Ground” law (and is now serving as Chair of the Florida House Judiciary Committee), explains the reasoning behind that law:

… a victim of a violent attack has seconds to decide if they want to live or they want to die or they want to be a victim of violence, such as rape or a beating. (Emphasis added.) And I think in those circumstances, we need to give that law-abiding citizen the benefit of the doubt and stand beside them and say if you can stop a violent act from occurring that’s going to victimize you and your family, that we’re going to stand with you.

Fortunately for Mr. Tory, last month Circuit Court Judge Robert Pegg felt the facts of Tory’s case fit “Stand Your Ground.” Tory’s motion was granted and the case dismissed. Nevertheless, “Assistant State Attorney Michelle McCarter said she disagreed with Pegg’s decision … She argued Tory’s actions should have been considered unlawful force.” 

Tory’s case highlights the need for sentencing reform in Florida. The facts of the case are straightforward. A man was attacked and he pulled a firearm to fend off his attacker. The State Attorney considers that “unlawful force,” while a judge thinks that act is justified under the law. In this case, two reasonable people came to completely opposite conclusions about the legality of a straightforward set of facts.

That phenomenon is not unique. When it comes to these kinds of cases, Palm Beach County Circuit Judge Krista Marx explains that: 

A particular case might be presented to the State Attorney’s office in Miami-Dade, and the same exact case could be presented in Pensacola. And the State Attorney isn’t necessarily going to concur on exactly what the appropriate charges are. So there’s a lot of conversation about hoping that we’ll have uniformity under the [Stand Your Ground] law. But we never will. 

Mark Wilson, Chief Assistant State Attorney for Florida’s 16th Judicial Circuit echoes Judge Marx:   

There’s going to be a small number of cases where we don’t think there’s a real self-defense claim, a genuine, bona fide self-defense claim, and we’re going to file on it. Most of the time the courts will agree with us. But there will be a few cases where the courts don’t. There is reasonable disagreement. This is a human endeavor. None of us are perfect. And reasonable persons, men and women will disagree, of course, about these matters.

Representatives from the Florida Prosecuting Attorneys Association have argued publicly that prosecutors simply never file charges in cases where they think a valid self-defense claim exists. However, of the roughly 200 “Stand Your Ground” cases looked at by the Tampa Bay Times, 23% were granted immunity by judges and 10% were acquitted by a jury. Taking both the prosecutors’ claims and that data at face value means, of course, that in a full 1/3 of those cases, prosecutors did not believe a self-defense claim was legitimate, but a judge or jury did. That large disconnect is yet more evidence that “reasonable persons will disagree” about self-defense. 

Further evidence that “reasonable persons will disagree” about whether a given act is self-defense can be found in Mr. Wilson’s experience. Mr. Wilson testified that of all the motions for immunity that have been filed in his Circuit, he did not believe even a single one had “arguable merit.” However, of the two motions that proceeded to an immunity hearing, one was granted. Again, two reasonable people, two completely opposite conclusions.

The Tory case and others like it, coupled with the comments from Judge Marx and Mr. Wilson (especially in light of the data from the Tampa Bay Times), lead to one inescapable conclusion: what some people reasonably believe is self-defense, other reasonable people will believe is not.

Taken by itself, ambiguity about whether a given act will be protected as self-defense is not particularly problematic. After all, the role of judges and juries is to make decisions about such factual matters. However, Florida’s mandatory minimum sentencing scheme – particularly Florida’s “10-20-Life” statute, complicates the issue considerably.

It is particularly problematic.

Section 775.087, F.S., or Florida’s “10-20-Life” sentencing law (“10-20-Life”), provides, in relevant part: 

 Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for … aggravated assault … and during the commission of the offense, such person actually possessed a “firearm” … shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault … shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense. …

Any person who is convicted of a felony or an attempt to commit [aggravated assault], and during the course of the commission of the felony such person discharged a “firearm” … shall be sentenced to a minimum term of imprisonment of 20 years. … 

In other words, Florida law provides for a mandatory minimum sentence of three years for anyone convicted of aggravated assault who also possessed a firearm at the time of the offense, and a 20-year mandatory minimum sentence for anyone convicted of aggravated assault who also discharged a firearm during the offense.

We’ve already seen that reasonable people will disagree about whether an act was performed in self-defense or with criminal intent. This disagreement matters because when it comes to self-defense with a firearm, a reasonable person could believe he or she is acting in self-defense, while other reasonable people may disagree. If the other reasonable person is a State Attorney, then the person who believed he or she was acting in self-defense will face prosecution. The problematic combination of an ambiguous self-defense statute and a mandatory minimum prison sentence results – inevitably results – in otherwise law-abiding citizens facing prosecution for behavior they believed was protected under the law.

It is almost certainly the case that whether a jury accepts a self-defense claim or not is in part a matter of chance. As Judge Marx explains:

I have tried cases with two juries at the same exact time, receiving almost identical evidence, and they don’t return the same verdict all the time. Reasonable minds will vary. … And we certainly can’t have this goal of total uniformity. It will never happen.

Assume there are five cases in five jurisdictions where a defendant fires a warning shot to protect herself or a third party from violence. Even though the cases share virtually all of the same relevant facts, one defendant might not be charged at all, another might be granted immunity, a third might be acquitted at trial, a fourth might accept a plea bargain and a fifth convicted at trial. The first three would serve no prison time, the fourth would serve a reduced sentence, and the fifth would serve twenty years in prison.

That can’t be right.

Mr. Tory was fortunate to have a judge who agreed with his claim that he should be immune from prosecution. However, a different judge might have ruled differently. If Mr. Tory, secure in his belief that he acted in self-defense and is not a criminal, opted for trial instead, and the State Attorney was able to convince six people that Mr. Tory’s actions technically met the elements of the offense, he would have spent Christmas in a state prison instead of home with his family. And for the next three years Florida taxpayers would be paying to incarcerate him for the “crime” of protecting himself from violent attack.

Upon hearing the facts of another warning shot case, former state Senator Victor Crist, who crafted 10-20-Life while serving in the Florida House of Representatives, said lawmakers did not have “warning shot” cases in mind when they passed the bill. Instead, Crist said, “We were thinking about the punk robbing a liquor store who has a gun and pulls it out and either threatens to shoot or shoots someone while committing a crime.”

Irrespective of the intent of the law, the combination of an ambiguous statute and the mandatory minimum sentences in 10-20-Life undermines the self-defense rights of law-abiding Floridians. Worse, that combination leaves law-abiding citizens at a disadvantage when actually confronted by criminals. As Chairman Baxley said, “… a victim of a violent attack has seconds to decide if they want to live or they want to die or they want to be a victim of violence, such as rape or a beating.” Yet, the status quo forces Florida’s gun owners to weigh the prospect of a three (or 20!) year mandatory minimum prison sentence against defending oneself or one’s family, all in the “seconds” they have in the face of a perceived threat. That calculus leaves law-abiding Floridians vulnerable to attack, an indefensible outcome that is unambiguously the most perverse unintended consequence of 10-20-Life.

There is a way out of this mess.

The Florida legislature can and should pass a reform that would require judges to depart from an otherwise applicable mandatory minimum sentence in any case in which a defendant makes a prima facie case of self-defense. Such a reform – narrowly tailored to preserve the intent of 10-20-Life – would send the signal that Florida takes seriously its obligations to protect citizens from violence, and that it takes seriously its obligation to fully protect Second Amendment rights and the fundamental right of self-defense for all Floridians.

~ Greg Newburn
FAMM Florida Project Director