The Threatened Use of Force Act Does Not “Expand” Stand Your Ground (Or, “Call Me, Al.”)

Post Date: February 25, 2014

After the Florida House Judiciary Committee voted overwhelmingly to approve HB 89 last week, an unfortunate – and unfortunately predictable – response from the few opponents of that bill emerged. Their new talking point? “Florida is trying to expand Stand Your Ground.” We saw this recently over at Think Progress (which for some reason still erroneously maintains that “domestic violence victims are exempt from using Stand Your Ground as protection”), where Nicole Flatow wrote: “But while [Michael] Dunn and his lawyer are invoking the language of the Stand Your Ground law to argue that he shot the seemingly unarmed teen in self-defense, a state Senate panel will take up a bill Tuesday morning to expand Florida’s already-expansive self-defense law.” And we saw it on Al Sharpton’s show, where Reverend Al reported that “lawmakers in Florida are now threatening to expand [Stand Your Ground], just days after millions of Americans were stunned by the Michael Dunn verdict.”

Are they right? Does HB 89/SB 448 “expand” Stand Your Ground? Let’s see! (Spoiler: They’re wrong!)

Florida’s self-defense law – like most states’ self-defense laws – establishes when a person may act in self-defense, and how a person may act in self-defense.

Under current law:

A person who is not engaged in an unlawful activity and 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 and meet force with force, including deadly force if he or she 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.

A person may use deadly force without a legal duty to retreat when that person “reasonably believes” it is necessary to use such force to prevent death or great bodily harm to herself or a third party, or to prevent the commission of a forcible felony. (Note that the standard under the law is objective, not subjective. Despite some claims, it isn’t legally sufficient for a defendant to merely claim that he felt threatened. Rather, the belief that deadly force was necessary to prevent death, great bodily injury or the commission of a forcible felony  must have been reasonable under the circumstances.)

The statute outlines broadly the sphere of situations in which the use of deadly force is justified in self-defense. The implication of the arguments by Flatow, Sharpton and others is that HB 89/SB 448 expands that sphere, such that fact patterns that would not provide the necessary justifications for deadly force under current law would provide that justification under HB 89/SB 448.

This is false.

 HB 89/SB 448 makes no change whatsoever to when a person may use force in self-defense. It is utterly silent on that question. The bill does not in any way expand the definition of what it means to “reasonably believe” deadly force 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.” It speaks not a word with respect to the already codified standards for when self-defense is justified. Rather, it addresses how a person may act in self-defense.

As the House Criminal Justice Subcommittee staff analysis of HB 89 shows: “A close read of ch. 776, F.S., reflects that only a person’s actual use of force is justifiable – not a person’s threatened use of force.” In other words, the law provides immunity to people who act in self-defense only by actually using force. Under current law, the threatened use of force is not similarly protected. In practice, this means that if a person is attacked and responds by killing her attacker, she will likely be immune from criminal prosecution. However, if she responds by displaying a firearm defensively or firing a round into the ground to scare the attacker away, she could be charged with aggravated assault and perhaps spend the next twenty years behind bars. HB 89/SB 448 corrects this misstep in the law. 

In some ways, it is ironic that some of the very people who want to repeal Stand Your Ground – e.g., Reverend Sharpton – also apparently oppose HB 89/SB 448. Advocates for the repeal of Stand Your Ground presumably want to reduce (to zero) the number of situations in which it is legal to fail to retreat in the face of imminent danger (when such retreat is available). And presumably they advocate this position because they want to reduce the number of people killed in situations where the victim of an attack could reasonably have retreated instead of using deadly force. 

But if their objective is to reduce the number of deaths in self-defense situations, why would they oppose a bill that changes the current law’s de facto killing requirement? To oppose HB 89/SB 448 is to say, in effect, “If you don’t kill your attacker, you’re not acting in self-defense.” Now, that is the argument prosecutors use routinely to defeat claims of self-defense at trial. (“If he was really scared he wouldn’t have fired just a warning shot.”) And while that silly argument might make sense if your goal is to convince a jury to convict a defendant, it doesn’t make any sense if your goal is to reduce the number of deaths in self-defense situations. (Indeed, that argument is what HB 89/SB 448 is intended to defeat. It strips from prosecutors the claim that threatened use of force is not a legitimate means of self-defense, and therefore makes it more likely that a defendant who threatens force will prevail on a claim of self-defense.) In any event, it’s at least possible that defensive display and/or warning shots could defuse a potentially violent situation before it becomes maximally violent. For anyone who wants to reduce unnecessary deaths in self-defense situations, this is a good thing

A recent case out of Pensacola illustrates the point nicely. 36-year-old Earl Moultrie, Jr. was followed home by a group of men who threatened Moultrie and his family. When one of the men approached Moultrie with a knife, Moultrie fired a warning shot, and then shot the man and killed him. Though the Escambia County Sheriff and the State Attorney, Bill Eddins, thought Mr. Moultrie was a murderer, a judge threw out the murder case against him out last week, ruling that, “A reasonably prudent person in those same circumstances and with the same knowledge would have used the force the defendant used.” (Moultrie spent ten months in jail before the case was dismissed.)

But what if Moultrie hadn’t killed the man with the knife? What if the warning shot caused the group to flee and prevented the attack? A strong argument could be made that Moultrie would not be protected under current law – after all, Polk County Sheriff Grady Judd says flatly, “You cannot fire a warning shot. It is against the law.” In that scenario, if the group of men threatening Moultrie later called the police, then Moultrie – the victim! – would be facing 20 years in prison. However, if HB 89/SB 448 becomes law, Moultrie’s warning shot would be protected as legitimate self-defense, and not subject to prosecution.

So, to recap: despite the spurious claims that HB 89/SB 448 “expands the already expansive self-defense law in Florida,” the bill does nothing whatsoever to change when self-defense is justified. Rather, it only changes how a person may act in self-defense. And the only way it does that is by adding the threatened use of force to the means of legitimate self-defense protected by law. In other words, in many ways the bill provides immunity for opting not to kill an attacker.  Obviously anyone who supports Stand Your Ground should also support HB 89/SB 448; that’s a no-brainer. But even opponents of Stand Your Ground should support HB 89/SB 448 if they truly want to reduce the number of deaths in self-defense situations.

~Greg Newburn, FAMM Florida Project Director

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