Why are so many people spreading lies about Senate Bill 89?

5419 Views 35 Replies 11 Participants Last post by Mac45, May 31, 2014

Bladeforger

Discussion Starter · May 28, 2014

I live in Pinellas County, and our sheriff is Sheriff Bob Gualtieri.

There was an article about Senate Bill 89 in the Miami Herald where Sheriff Bob was quoted as saying that it weakened the SYG law by requiring that a threat be "imminent".

And now, Simmons is saying that SB89 would weaken SYG.
http://www.tampabay.com/news/politics/stateroundup/warning-shot-bill-gets-new-critic-in-florida-lawmaker-who-drafted-stand/2181017

HOWEVER, the bill is here, with changes to the existing law, and with removed wording striken through and new wording underlined:

http://flsenate.gov/Session/Bill/2014/0089/BillText/er/PDF

The word "imminent" was already there before!! See page 5 going into page 6.

Bob Gualtieri is SUPPOSEDLY a Second Amendment supporter. But it doesn't appear that his words reflect what the bill is trying to change, which is keeping timid beaten-up-before ladies out of prison for firing warning shots.

Reasons:
1. Bob Gualtieri is too lazy to go read the bill?
2. Bob Gualtieri, an attorney, is too stupid to understand the bill?
3. Sheriff Bob Gualtieri is deliberately lying and trying to get firearms owners to panic and call the governor in opposition to the bill?
3a: He's doing this to keep a "warning shot" bill from becoming law because of collateral damage to bystanders?
3b: He's lying because he has another agenda... like perhaps a desire to run for higher office?

I know he ain't lazy; I know he isn't stupid, either. So he's lying. And Simmons is lying. Even if I give them the benefit of the doubt and decide to believe 3a above, they are still lying to us. They are lying to firearms owners via Pravda West and the Miami Socialist Herald. I hate being lied to!!!

If I am not analyzing this stuff correctly, then please PLEASE correct me. Because otherwise I cannot continue to support Gualtieri.

THANKS!!

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BrianB

· #3 · May 28, 2014

Bladeforger said:
Bob Gualtieri is SUPPOSEDLY a Second Amendment supporter. But it doesn't appear that his words reflect what the bill is trying to change, which is keeping timid beaten-up-before ladies out of prison for firing warning shots.

Who says Bob Gualtieri is supposedly a 2A supporter? He is to 2A supporters as RINOs are to Republicans.

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BrianB

· #7 · May 28, 2014

JimG19 said:
Ask him if he was one of the six County Sheriffs who stood with the NRA and broke ranks with the Florida Sheriffs Assn on the evacuation bill. My Sheriff stood with the NRA.

To my knowledge Gualtieri has opposed everything that Florida Carry has ever pushed for legislatively (including open carry). Someone can correct me if I'm wrong about that. Best I can tell he's one of those politicians that likes to say they are pro-gun and then turn around and actively work against us at every turn.

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BrianB

· #20 · May 29, 2014 (Edited)

1. A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

Going by the black letter law I tend to think that Mac's interpretation is correct. I'm going to take the above and rewrite it eliminating the "or" in the beginning and replacing it with the effective language that the "or" creates.

1. A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.

A person is justified in threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.

A person who uses force in accordance with this subsection does not have a duty to retreat before using such force.

A person who threatens to use force in accordance with this subsection does not have a duty to retreat before threatening to use such force.

The bolded portion could be read to say that you may not threaten to use deadly force against even an imminent use of force that is simply unlawful.

Then there is the next section which apparently intends to deal with deadly force.

2. A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such for is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

Parsing that yields this:

2. A person is justified in using deadly force if he or she reasonably believes that using such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

A person is justified in threatening to use deadly force if he or she reasonably believes that threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

The end result appears to be that you can only threaten to use deadly force if you could legally actually use deadly force.

I think the average juror would say that drawing a firearm to low ready would constitute threatening to use deadly force.

Unless there is a bullet proof (no pun intended) argument to counter the above, then I would say with regard to pulling your firearm as a deterrent measure to another's offer of non-deadly force, by the black letter of the law the result of the new law will indeed be more restrictive than in the past.

In the past I believe that the only statute that potentially criminalized "defensive display" was 790.10 (displaying "in a rude, careless, angry, or threatening manner, not in necessary self-defense"). That said, I don't know enough about the cases where people were convicted for threatening to use a firearm and sentenced to mandatory minimums. Were they charged under an overbroad reading of some other statute? If so, then we'd probably have to look at that statute as well.

I scanned the legislative purpose and findings in the first part of the bill and don't find anything that would clarify or refute the reading of the text that would imply that you cannot threaten to use deadly force against merely unlawful force.

My mind is open to persuasion in all directions at the moment, but the above is my conclusion after reading the posts thus far and parsing the text of the revised statutes.

Edited to add: It is important to note, and it just dawned on me, that 776.012, 776.013 are permissive statutes. They do not criminalize any behavior. They simply decriminalize behavior that might have otherwise been considered criminal. In that respect no new restriction on your ability to threaten to use force has actually occurred. The simple fact (if indeed it is a fact) that 776.012 does not authorize you to threaten to use deadly force against one whom merely offers unlawful force against you does not mean that it criminalizes doing so. So it would seem that with regard to that particular fact pattern (old lady draws gun to ward off unarmed bully) nothing may have actually changed.

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BrianB

· #22 · May 29, 2014

Mac45 said:
It is actually even worse that that. Drawing the weapon would not be necessary, for a viable threatened use of deadly force. Reams of case law, concerning what constitutes a threat of deadly force, exist with regard to aggravated assault. It is pretty much universal that all you need for a viable threat of deadly force, is the threat, a deadly weapon in your possession and the opportunity to carry out the threat.

See my "edited to add" that I added to the bottom of my post while you were composing the above.

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BrianB

· #23 · May 29, 2014

Mac45 said:
It is actually even worse that that. Drawing the weapon would not be necessary, for a viable threatened use of deadly force. Reams of case law, concerning what constitutes a threat of deadly force, exist with regard to aggravated assault. It is pretty much universal that all you need for a viable threat of deadly force, is the threat, a deadly weapon in your possession and the opportunity to carry out the threat.

The bolded would be the important part there. If I part my coat and show my gun you might take it as a threat and you might take it as merely offering additional useful information to allow you to make an informed decision about continuing what you planned. Drawing the firearm is much more clearly a threat than simply showing that you have it (in my opinion). That's in addition to my "edited to add" note that nothing in the new statute criminalizes anything (that I can find).

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BrianB

· #26 · May 29, 2014

Mac45 said:
The new bill does not directly "criminalize" an act. What it does is remove previously held legal justification for a threatened use of deadly force in self defense, where the actual use of deadly force is not legally justified.

Which previously held legal justification does it remove? More specifically, what statute (if it was in a statute and wasn't case law) contained the previously held legal justification, and what language of the new bill removes it?

All I see is a revised law that adds new language specifically allowing certain threats, without disallowing any. It says you are justified in threatening to use force, except deadly force. To me that confers the determination of "justified" on a specific action, but does not confer the determination of "unjustified" on the excluded action - leaving the excluded action to whatever state it may have based on any other laws or case law.

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BrianB

· #28 · May 29, 2014

Mac45 said:
One thing that you seem to have forgotten is that 776.012 and 776.031 specifically exclude the use [and, as amended by S89, the threatened use] of deadly force, unless there is imminent danger of great bodily harm or death, or the commission of a forcible felony.

I'm not concerned with the actual use of deadly force at the moment since I don't think anything about using deadly force has changed. With regard to threatening to use deadly force the new verbiage says that threatening to use force is deemed "justified" (and therefore immune to criminal charges under other statutes). It fails to deem some other threatened uses of force as "justified" but that does not then change the meaning of the other statutes and render such threatened use to be suddenly criminal.

Sure it's less than ideal bill drafting, especially if their intent was to allow threatened use of lethal force to repel non-lethal force, but I don't think they've done what you think they've done. I don't think anything in the new law changes the applicability of any statute, under which you could actually be charged with a crime, in a way that makes you more susceptible to being so-charged than you were before.

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BrianB

· #30 · May 29, 2014

Mac45 said:
Forget the spin. Here is the actual situation. Until the passage of S89, the statutory justification fo the threatened use of deadly force resided solely in 790.10 and 790.053, both of which dealt with the display of deadly weapons. There was no definitive statutory justification for the threatened use of deadly force. This made it relatively easy to successfully argue that the threatened use of deadly force was justified, whenever a situation existed where any form of self defense was warranted. The passage of S89 equates the threatened use of deadly force directly to the actual use of deadly force and limits the threatened use of deadly force to only those situations where the actual use of deadly force is justified. The "intent" of the legislature is always a nebulous thing and, if you have to argue that the wording of a statute runs contra to the "intent" of the legislature, in that statute, then you have a serious problem.

I think we'll have to agree to disagree on the bolded. I contend that the statute only stamps the "justified" label on certain threatened use (making it unambiguous that it's OK) and leave any other such threats as they were - subject to interpretation under other statutes.

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BrianB

· #32 · May 29, 2014

deaheat said:
Display of a weapon could also be brief exposure, just saying!!!

As long as it's "in necessary self defense".

It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.

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BrianB

· #35 · May 30, 2014

Mac45 said:
We can disagree that gravity exists, but if you step off the roof of a 20 story building, you are still going to make a splat when you get to street level.

I think you are wrong about that and I challenge you to prove otherwise. Lol. Just kidding.

I appreciate you pointing specifically to 784.021 and indicating how you feel the interplay between that statute and the new one will work out. I agree that the new statute could come into play when interpreting the assault element "unlawful threat by word or act to do violence". I think it is still open to interpretation (by a jury anyway) as to whether or not drawing a firearm on someone who is threatening you is an "unlawful threat by word or act to do violence". In order for it to be an unlawful threat I think you'd need to be able to point to a statute that said the threat was unlawful, not merely to a statute which says a different kind of threat is justified but doesn't explicitly say the other kind is unlawful. If the new statute specifically said "t shall be unlawful to threaten to use lethal force unless[...]" then it would be a different story. But the new statute doesn't say that.

I think the disconnect here is that reasonable minds can disagree about what one should think about the fact that the statute specifically labels a certain type of threat with the term "justified" but excludes other threats from receiving that label.

I think of it sort of like the castle doctrine "presumptions". Under certain circumstances the law "presumes" you have a reasonable and well founded fear, and are therefore justified in the use of lethal force, even if you may actually not have it. You don't have to prove you had a reasonable and well founded fear to justify your use of lethal force under those circumstance. If you are under other circumstances where you do not have the benefit of the "presumptions" it doesn't mean you don't have a reasonable and well founded fear, or that your use of lethal force isn't justified, it just means you are going to have to prove that you had a reasonable and well founded fear. Yes, I realize that the state actually has to prove that you didn't have a reasonable and well founded fear, but that just makes the discussion awkward so the legal-minded will have to forgive my artistic license for that part of the discussion.

I think the new statute works similarly. It brands the label of "justified" on certain types of threats. If you make a threat under those circumstances, the law says it was justified and the courts should not inquire into the matter further than establishing that your case fits the fact pattern. But I do not think that the statute renders unlawful the threats that are excluded from the explicit justification conferred on some threats. I think it leaves the balance of the threats in an unchanged status where they are simply to be evaluated in the context of statutory and case law that may apply to the fact pattern.

All of that said I think both sides are equally plausible and honest your side is easier to explain and therefore probably an easier sell to a jury.

I don't really care from the standpoint of conducting my daily affairs because: a) I'm not a fan of threatening to use force that I can't actually legally use, b) if I did feel that was the best way to ensure my safety I'd do it anyway even if I knew it was illegal (better to take your chances with a jury than with a violent criminal).

So for me it is an intellectual exercise.

For Rich and the fine folks at Florida Carry it might be more of an important exercise. If they solidly agree with your reasoning, and if this was not an intended outcome, then it would be wise to pursue future changes to close the gap.

Good discussion. These things are fun when everyone remains civil.

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