Ciara Taylor and Meena Jagannath Are Wrong About The Threatened Use of Force Act

Post Date: March 13, 2014

A guest column in today’s Tallahassee Democrat is the latest attack on the Threatened Use of Force Act. It’s also the latest attack that gets a number of things wrong about that bill. Read the whole thing. I’ll respond to the paragraphs in the piece that discuss the Threatened Use of Force Act.

As the country reels from the outcome of the Jordan Davis case and national conversations abound on the need to repeal Stand Your Ground laws, the Florida Legislature is steadily working to expand the law. We are left stunned and bewildered as we see ill-conceived bills on the threatened use of force hurtle towards passage with bipartisan support.

This is mistaken. As I’ve explained before, the Threatened Use of Force Act does not “expand” Stand Your Ground. Rather, it merely protects the threatened use of force in situations in which deadly force would already be protected by law. And, yes, I’m proud to say the bill has not only wide bipartisan support in both the House and Senate, but it also has wide support among relevant stakeholders. FAMM, NRA, Florida Carry, the Public Defenders Association, and the Florida Association of Criminal Defense Lawyers all support the bill. Even the Florida Sheriffs Association – certainly no friend to self-defense rights traditionally – supports the bill. It is not often that a reform has that level of broad support, and this particular coalition borders on theoretically impossible. Yet, here we are, because every one of those groups recognizes a problem with the law that needs to be fixed. 

Yet, almost callously so, some lawmakers are not just continuing to express full-throated support for [Stand Your Ground]. Much to our alarm, they are now doubling down.

Having been involved with this reform effort from the very beginning, I know that support for this effort derives not from a callous disregard for how self-defense laws might be unevenly applied, but rather from a  sincere sense that something is deeply wrong with the status quo, and a genuine desire to fix that problem. 

Over the past two weeks, both houses of the Legislature have voted overwhelmingly to expand Stand Your Ground by approving CS/CS/HB 89 and SB 448, the so-called “Warning Shot Bills.” The bills would build upon the rotten foundation of the self-defense law, including Stand Your Ground, to allow immunity for the threatened use of force, such as firing a warning shot. 

The first sentence isn’t strictly true, as neither bill has been voted on by the full House or the full Senate. (However, several committees have voted overwhelmingly to pass these bills.) And – again – nothing in HB 89/SB 448 “expands” Stand Your Ground. The authors are correct, however, that the bills would provide immunity for the threatened use of force, and that such threatened force would include discharging a firearm for the purposes of warning an attacker. 

Though its supporters claim the bill would help in cases such as Marissa Alexander, the black Jacksonville woman who received a 20-year sentence for firing warning shots at her husband, that argument is disturbingly short-sighted. Contrary to the distorted messaging around the “warning shot bills,” these bills will make it easier for Floridians to shoot before thinking twice.

Note that the authors don’t deny that these bills would have helped Marissa Alexander. Rather, they seem to implicitly grant that assumption, but then argue that helping Alexander is “disturbingly short-sighted” because the bills “will make it easier for Floridians to shoot before thinking twice.” This last part, of course, is incorrect. Nothing in the bill “makes it easier to shoot.” The bill does not change the standard that governs when a person may act in self-defense. That standard remains untouched by the Threatened Use of Force Act. But perhaps by “easier,” the authors mean that people will be less likely to face arrest, prosecution and long prison sentences for the display or discharge of weapons in legitimate self-defense situations. If that’s the argument then, well, yes, that’s true. That’s the whole point

Opponents of mandatory minimum sentences are supporting these bills, despite the potential disastrous consequences for racial minorities. Yes, mandatory minimums need to be repealed, but not on the back of a bill that expands Stand Your Ground. We cannot accept that an expansion of the Stand Your Ground law is the poison pill we must take to reform mandatory minimums.

I simply don’t agree that the Threatened Use of Force Act creates “potential disastrous consequences for racial minorities,” and I haven’t seen even a remotely compelling case for taking that claim seriously. I’ve certainly seen the claim made, and often. But I haven’t seen any evidence for it. Should someone create a compelling case for why the Threatened Use of Force Act would have such impacts, I would reconsider my support for the bill. By my lights, that case simply hasn’t been made, or even close to made.

Of course I agree that mandatory minimums ought to be repealed. I’d repeal them today – all of them, right now! – were it in my power to do so. But while the authors are right about that point, they are – once more – simply wrong that this bill expands Stand Your Ground. There is no “poison pill”; there is only a marked improvement over the indefensible status quo.

The “warning shot bills” are frighteningly expansive, with no specific details on the situations in which “threatened use of force with defensive intent” could be justified.

The authors don’t justify calling the bills “frighteningly expansive.” But even if they had, the idea that a statute should give “specific details on the situations” in which defensive action “could be justified” strikes me as odd. Imagine if someone wrote a piece arguing against a torts bill because the bill didn’t “give specific situations in which” a person fails to exercise care. That, too, would be odd, because statutes aren’t designed for that purpose. No statute can delineate an exhaustive list of actions covered by it, because that list would be infinitely long. (Is a shop owner liable if a customer slips and falls ten minutes after the danger was discovered? Nine minutes? Eight? Eleven?) Applying statutory standards in real life cases is the function of courts, not legislatures, and attacking a bill for failing to list exactly how it should be applied in real-world situations seems to ask too much.

As written, the bills vaguely allow anybody who feels threatened to pull out a gun and fire shots anywhere — in a home, in a vehicle, in a public space — with immunity.

 

This is wrong. And it’s so egregiously wrong one wonders if the authors of the piece have even read the bill. Go read it! Find me the line in this bill that allows “anybody who feels threatened to pull out a gun and fire shots anywhere.” You can’t do it, because it isn’t there! 

It encourages aggressive behavior toward subjective fears without requiring a person to attempt to remove him or herself from the situation.

 

Again, this assertion is totally incorrect. Nothing in the bill “encourages aggressive behavior,” and nothing in the bill codifies any “subjective fear.” Under Florida law, the standard for when a person may act in defense of oneself or another is objective. Acts of self-defense are legally  justified only when a person “reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Now, you may disagree with how that objective standard was applied in a given case, but that doesn’t change the fact that nothing about that standard is subjective. And since the Threatened Use of Force Act keeps that standard intact, nothing about that bill relies on a subjective standard. Arguments that HB 89/SB 448 allow someone to fire shots based on a subjective fear are based on ignorance of the bill – at best. 

 

It leaves intact all of the provisions of the Stand Your Ground law that have shown themselves to be confusing, problematic and subjectively applied based on one’s worldview.

 

Yes, the bill does not change any of the provisions of “Stand Your Ground.” Nor was that the intent of the bill. A different bill to repeal Stand Your Ground was heard in the House Criminal Justice Subcommittee last year, and that bill was defeated. If the authors of the piece believe Stand Your Ground is problematic, they should continue to lobby to change that law. The Threatened Use of Force Act has nothing to do with that fight, and never has.

 

The recent Michael Dunn trial exposed the ways in which the Stand Your Ground law muddies the boundaries of self-defense so much that the imagination of the shooter is given the same weight as the reality of the victim’s death.

 

There can no doubt that there is no bright line that separates criminal acts from acts of self-defense. And we will never find ourselves in a situation in which all reasonable people agree on which is which. The best we can do is codify standards that aim to protect self-defense and punish criminal acts, then let judges and juries familiar with the facts of individual cases decide which is which. And there will always be cases where reasonable people believe juries have made mistakes. Indeed, the fact that these cases are often “close calls” and dependent on facts known only to the parties involved is the reason judges should have flexible sentencing options in self-defense cases. In many ways the fact that the boundaries of self-defense are often unclear is why the bill was written.

 

We know there is a better way. During the Dream Defenders’ 31-day sit-in at the Florida Capitol last summer to address the state’s criminalization of young people, we created a series of bills, collectively titled “Trayvon’s Law.” This legislation would deter racial profiling, reduce the effects of the school-to-prison-pipeline and reform the Stand Your Ground law.

Nothing in “Trayvon’s Law” (as I understand it) would solve the problem that the Threatened Use of Force Act is intended to solve. So I’m not sure what the authors mean when they say Trayvon’s Law is a “better way.” Further, nothing in Trayvon’s Law (as I understand it) contradicts anything in the Threatened Use of Force Act. One could consistently support both. (And many do!)

In our measure to reform Stand Your Ground, the Dream Defenders build on SB 112, the measure Sen. Chris Smith originally filed last August. Our measure includes a duty to retreat if possible, deletes section 776.013(3), which includes the language used in jury instructions on how to apply Stand Your Ground, and defines “unlawful activity” to mean those activities prohibited by the laws of Florida. These changes will carefully circumscribe the situations where the use of deadly force may be justified, ensuring that the public is not needlessly put in danger. These changes will also ensure that Florida is not offering immunity in an overly broad set of circumstances.

This paragraph is a red herring in the discussion over the Threatened Use of Force Act, because HB 89/SB 448 doesn’t change the standards for self-defense. Whatever the standard is for the actual use of force, that’s the standard for the threatened use of force, too. If the authors are successful in passing their proposed restrictions on when a person may use force in self-defense, then those same restrictions will apply to the threatened use of force, too. If there’s no duty to retreat before using force, then there’s no duty to retreat before threatening force. If there is a duty to retreat before using force, then there’s a duty to retreat before threatening force. Whatever the underlying standards are that govern the actual use of force, those are the standards that govern the threatened use of force, too. If your problem is that the standard for the use of force is too permissive, then, by all means, work to change it. But opposing this bill does not achieve that purpose, because, again, the Threatened Use of Force Act is just not about Stand Your Ground.

The Dream Defenders’ bill also revives the section of Sen. Smith’s original legislation on mandatory minimum sentencing, since it is an important provision to help avoid cases such as that of Marissa Alexander. Recent news that the prosecution in Alexander’s case will seek consecutive mandatory minimum sentencing makes this provision all the more important.

The section of SB 112 on mandatory minimums begins on line 243 here. That language would be a meaningful improvement over the status quo with respect to sentencing in self-defense cases, and if that bill is heard, I would happily support it.

Conversely, the bills now before the Legislature would do none of this and may actually make things worse for defendants like Alexander.

This is baffling. The current Senate version of the Threatened Use of Force Act contains a section providing that an otherwise applicable mandatory minimum under 10-20-Life will not apply if a sentencing court finds that certain facts hold. You can see that language here. To argue that allowing a judge to make findings and depart from an otherwise mandatory sentence would “make things worse for defendants like Alexander” simply makes no sense on its face.

Communities of color know that the criminal justice system has long been structurally skewed. We should never settle for solutions that merely tinker, leaving a fundamentally unjust framework intact. 

I  agree that the structure of the criminal justice system is fundamentally flawed, and that those flaws often manifest themselves in ways that unjustly burden minorities. I would change the system in many, many ways. This bill is but one of those ways, and it is a good change. Is it perfect? No. Is it the bill I would write? No. Is it a meaningful improvement over the status quo? Yes. Should anyone who supports sentencing reform support the bill? Enthusiastically, irrespective of your position on any other law.

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