Post Date: November 27, 2013
Last week, several news outlets reported that Duval County Sheriff John Rutherford came out in opposition to the Committee Substitute for HB 89 (HB 89) (the “Threatened Use of Force Act”), which recently passed 12-1 in the House Criminal Justice Subcommittee.
Sheriff Rutherford’s case against HB 89 – such as it is – leads me to believe he has either not read the bill, or that he simply doesn’t understand it. You can read the staff analysis for what the bill does here; I’ll explain it here, too.
Briefly, HB 89 does several things: First, it makes legislative findings that:
[P]ersons have been criminally prosecuted and have been sentenced to mandatory minimum terms of imprisonment pursuant to s. 775.087, Florida Statutes, 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.
In other words, the bill makes the finding that some people are serving mandatory minimum sentences under 10-20-Life for threatening the use of force (e.g., by displaying a firearm to prevent or stop an attack) under situations that would have been protected by law had the actual use of force (e.g., shooting an attacker) had been used.
As the staff analysis shows:
A close read of the above-listed provisions of ch. 776, F.S. [i.e., “Stand Your Ground” immunity], reflects that only a person’s actual use of force is justifiable – not a person’s threatened use of force. While some courts have recognized that a threatened use of force equates to an actual use of force, the statutes do not clearly indicate this.
Second, HB 89 explicitly protects the threatened use of force in situations where the actual use of force would be similarly justified.
Representative Jamie Grant (R, Tampa) explained this part of the bill well during a recent hearing on the bill:
This bill does not give immunity. This bill simply says that I can have an immunity hearing; that a judge can apply the facts of what happened to determine whether or not I was in fear for my life, and whether or not I had to actually pull the trigger to be granted that immunity. Representative Combee’s bill does something very, very, very simple. … [It says] I can have the immunity hearing, the court can give me immunity, for simply brandishing a firearm or a weapon in the event I fear for my life. … All we are effectively doing today is codifying a standard that says if I am in fear for my life, I have the ability to threaten harm, rather than actually using harm, and not go to prison for 20 years.
That is exactly right.
Nevertheless, Sheriff Rutherford opposes the bill. Let’s see why.
First, Sheriff Rutherford says:
I think this opens a Pandora’s Box. People can pull guns with immunity? I think that’s a bad, bad move.
This is simply a distortion of the bill. As Representative Grant clearly explained, HB 89 does not give immunity to anyone who who “pulls guns.” Rather, it provides that if one would be justified in actually using deadly force in self-defense, that person is also justified in brandishing a firearm or otherwise threatening the use of force in self-defense. Anyone who “pulls a gun” in circumstances that fall outside of the sphere – or should I say bucket? – of protected acts is not eligible for immunity. (Much like anyone who uses force in circumstances that fall outside of that sphere/bucket is similarly not eligible for immunity under Stand Your Ground.)
Speaking of Stand Your Ground, Sheriff Rutherford is on record in support of that law. But he opposes HB 89. That’s odd, because, with respect to the actual use of force, Stand Your Ground does exactly what HB 89 does with respect to the threatened use of force. To support Stand Your Ground but oppose HB 89 means Sheriff Rutherford believes that killing an attacker should provide absolute immunity, but that threatening to kill an attacker should provide no protection whatsoever, even if the threat alone would have deterred the threat.
To make the point more clearly, imagine the following scenario:
A woman is walking through a parking garage late at night. A man approaches her. He’s holding a knife and tells her to stay quiet or he’ll kill her. Before the man can reach her, the woman pulls a firearm from her purse and points it at the man.
Imagine that the next line in the story is:
She shoots the man in the chest, and he dies.
Presumably Sheriff Rutherford would agree that the woman had every right under the law to defend herself with deadly force. And since he supports Stand Your Ground, presumably he’d further agree that she had no duty to retreat, and therefore she should receive full immunity from prosecution. This is the correct position.
But imagine the next line is, instead:
The man turns and runs away.
Given that Sheriff Rutherford thinks it’s a “bad, bad move” to “give immunity” to people who threaten the use of force to prevent violent attacks, and given that the woman in the story threatened force, but didn’t use force, then presumably he thinks that in this case the woman should not be immune from prosecution. In other words, he thinks that a prosecutor should have the option of charging this woman with aggravated assault should that prosecutor determine – months later, possibly – that pulling her firearm was an unreasonable response to the threat posed. (And, after all, if she were really afraid she’d have shot him, right?)
The logic of Sheriff Rutherford’s position leads to the conclusion that he believes a citizen should have to use the maximum force possible in the face of a threat to have any protection under the law. That is not an incoherent position, exactly, but it is certainly odd.
Undeterred by the demands of logic, Sheriff Rutherford continues:
[HB 89]’s gonna make prosecution much more difficult.
Sheriff Rutherford is absolutely right that HB 89 is “gonna” make it more difficult to prosecute law-abiding citizens who use firearms to protect themselves in the face of an imminent violent attack. Indeed, that’s the whole point. As Marion Hammer of the NRA explained in a2005 op-ed in defense of Stand Your Ground:
The victim has a split second to take action to defend her life. That decision must be hers, not a prosecutor who isn’t anywhere near the scene. Law-abiding citizens shouldn’t have to worry about being prosecuted for doing what the Constitution and common sense give us all the right to do.
Ms. Hammer’s reasoning applies perfectly to the threatened use of force, too. (Which probably explains why the NRA emphatically supports HB 89.) If someone decides to stop an attack by threatening force instead of using force, she shouldn’t be subjected to second-guessing or face the threat of a mandatory minimum prison sentence any more than someone who uses force to stop an attack should be.
Stand Your Ground limits the power of State Attorneys to prosecute citizens who act in self-defense. It’s no surprise, then, that Florida’s prosecuting attorneys opposed Stand Your Ground in 2005, and remain opposed to Stand Your Ground today. They oppose it because it “makes prosecution more difficult.” And they’re right. That was the whole point, as Marion Hammer explained to the Task Force on Citizen Safety and Protection here. But while the consideration that prosecutions will be made more difficult has not caused Sheriff Rutherford to oppose Stand Your Ground, it has apparently prompted him to oppose HB 89.
Sheriff Rutherford continues:
I think what will happen is the dopers and the people who are carrying guns illegally out there on the street are gonna start pulling them more often. And when the police get there they’re gonna say, ‘Well, I was defending myself.’ And that’s a problem.
If I weren’t certain of Sheriff Rutherford’s unimpeachable moral character, I’d call this statement flatly dishonest. Instead, Sheriff Rutherford appears to be guilty of reading comprehension malpractice and astonishingly poor reasoning. Once again, nothing in HB 89 protects “dopers” (or State Attorneys, or anyone else) from threatening the use of force except in cases where the actual use of force is already justified under the law. And, again (this time with feeling): SHERIFF RUTHERFORD SUPPORTS THE LAW THAT PROTECTS THE ACTUAL USE OF FORCE IN THOSE SAME SITUATIONS. Is it Sheriff Rutherford’s position that people have used force improperly more often under Stand Your Ground than before that law was passed? If so, why does he support it? If not, then on what grounds does he make this prediction that people are “gonna” suddenly threaten force more often in situations where it’s unwarranted or unnecessary? The answer is: on no grounds whatsoever.
Sheriff Rutherford, apparently still unembarrassed, continues:
I don’t know anyone that’s being prosecuted for improper display or aggravated assault when the circumstances are clear to a reasonable person that the person was actually trying to defend themselves.
This comment proves Sheriff Rutherford simply doesn’t understand the problem HB 89 is trying to fix.
There is no bright line rule that distinguishes self-defense from a criminal act. The law does not (and cannot) delineate an exhaustive list of particular acts that will be protected as self-defense, and acts that will be considered (say) aggravated assault. The law does the very best it can do by requiring a reasonable belief that deadly force was “necessary … to prevent death or great bodily harm … or to prevent the commission of a forcible felony.” In other words, whether a given act will be protected or not turns on whether the defendant’s belief (that deadly force was necessary) was “reasonable.”
The crucial point is that reasonable people disagree about whether a defendant has met the relevant burden or not. In other words, reasonable people disagree about whether a given act is self-defense or criminal.
But don’t take my word for it. Mark Wilson, an Assistant State Attorney for Florida’s 16th Judicial Circuit, says that when it comes to self-defense claims,
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.
Judge Krista Marx agrees. As she explained to the Task Force on Citizen Safety and Protection:
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.
How does the fact that “reasonable persons will disagree” about self-defense actually play out? As I’ve noted before, 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. In other words, in 1/3 of cases where self-defense was an issue, a prosecutor believed a defendant had committed a crime, while a judge or jury thought the defendant acted in self-defense.
So, when Sheriff Rutherford says he doesn’t think anyone is being prosecuted for aggravated assault when “the circumstances are clear to a reasonable person that the person was actually trying to defend themselves,” he’s missing the point. The point is that when self-defense is an issue, there will be close cases, grey areas, situations where “reasonable persons will disagree,” and that this is true both for the actual use of force (for which Sheriff Rutherford supports immunity) and the threatened use of force (for which he opposes immunity).
But what about warning shots? Surely we can’t just have everyone going around firing guns into the air and claiming self-defense. After all, as Sheriff Rutherford says:
Those bullets are comin’ down somewhere.
Indeed, those bullets are “comin'” down somewhere. And, indeed, few people would argue that firing a warning shot is a responsible use of a firearm. However, I disagree with Sheriff Rutherford (and Angela Corey) who argue “there is no such thing as a warning shot.”
Presumably, Miami-Dade Chief State Attorney Don Horn would disagree, too. After all, while some prosecuting attorneys and Sheriffs may think warning shots are by definition reckless and criminal today, the Florida Prosecuting Attorneys Association (FPAA) once gave Mr. Horn an award for firing a warning shot. Here’s how Buddy Jacobs, General Counsel (i.e., lobbyist) for the FPAA, told the story to the Task Force on Citizen Safety and Protection:
Don is the first recipient of our Gene Berry award, which is the award we give … to the most outstanding prosecutor in Florida. He got his the first year, in the Overtown riots, whenever he stopped at a situation, took out his .38 revolver, which he lawfully had the use of, and fired it into the air to prevent some people from killing a woman in a car. And he extracted her and he saved her life. So he certainly understands guns.
In case you missed it: Horn “fired [his gun] into the air,” and the Florida Prosecuting Attorneys Association – the same group that represents Angela “There is no such thing as a warning shot” Corey – gave him an award for it. If “there’s no such thing as a warning shot,” would Sheriff Rutherford have arrested Mr. Horn? Would Ms. Corey have charged him? Do they believe Mr. Horn is a dangerous person who should be in prison? (And where did that bullet land?)
So, let’s recap.
Sheriff Rutherford supports Stand Your Ground, which means he supports immunity for the use of deadly force when a person has a reasonable belief that such force is necessary to “prevent death or great bodily harm … or to prevent the commission of a forcible felony.” But Sheriff Rutherford opposes HB 89, which would protect the threatened use of force in exactly the same situations. From what I can gather, Sheriff Rutherford has not drawn any meaningful distinctions that would reconcile those two seemingly incompatible positions. His opposition to HB 89 is based on either ignorance or a gross misreading of the bill coupled with poor reasoning and totally unsubstantiated predictions about its effects.
I’m sure that if Sheriff Rutherford thought about it, he could come up with good reasons to oppose HB 89.
I don’t think he’s done that yet.