Guest AuthorLast week, Florida House Criminal Justice Subcommittee Chair Matt Gaetz published a thoughtful and well-reasoned column on Context Florida in defense of Florida’s “Stand Your Ground” law.
Gaetz urged readers to recall the state of self-defense law before Stand Your Ground.
“Consider an elderly woman in a dimly lit parking lot or a college girl walking to her dorm at night,” Gaetz wrote. “If either were attacked, her legal duty would be to turn her back and attempt retreat, probably to be overcome and raped or killed. During attacks, victims were required to evaluate whether they had “a clear line of retreat” during split-second, terrifying moments.”
Gaetz continued. “[W]hile it’s easy for prosecutors, judges and even juries to second-guess the life-or-death decision a victim must make to use deadly force during an assault … the Legislature passed ‘stand your ground’ because, in close calls, we wanted our justice system to favor victims, not attackers.”
It is undoubtedly true that “Stand Your Ground” has helped shift public policy in favor of victims rather than attackers. That was and remains the right thing to do, despite protests to the contrary.
Unfortunately, at the same time, Florida’s “10-20-Life” gun-sentencing law significantly undermines the effort to shift in favor of victims over criminals. To illustrate why, let me add some facts to Gaetz’s hypothetical.
Imagine a 65-year-old woman who’s never committed a crime, but has been the victim of a violent crime, walking alone at night in the same dimly lit parking lot. She notices a car that seems to be following her too slowly, too closely, and for what seems to be too long.
The car passes her. A few seconds later, the car is back, this time coming toward her. Then it stops, and two large men get out and walk toward the woman. She can’t see clearly because the headlights are too bright, but one appears to be holding something in his hand.
When the men are about 10 feet away, the woman pulls a firearm from her purse, points it at the men, and tells them if they come closer she’ll fire. The men continue to walk toward her. She fires a shot into the ground. The men scramble back to their car and take off.
Is the woman in this hypothetical justified in pulling her firearm? In firing the warning shot? After all, there was no overt threat to her safety, and there was no “attack.”
I believe that in the context of the moment, and given her previous history as a crime victim, it would not have been unreasonable for the woman to believed an attack was imminent, and therefore she would have been justified in pulling her firearm to prevent it. But it’s almost certainly a “close case.”
Imagine, however, that the men in the car were just lost, didn’t intend the woman any harm, and claim they never heard her verbal warning. In that case, they might call the police and explain that a woman just pulled a gun on them. And then she might be arrested.
A state attorney might believe that the warning shot was unreasonable in the circumstances, and charge the woman with two counts of aggravated assault. The prosecutor might offer the woman a lighter sentence in exchange for a guilty plea to a lesser charge. But the woman – sincere in her belief that she committed no crime – might maintain her innocence and reject that offer.
If the woman rejects the plea offer and the case goes to trial, the prosecutor need only convince six people that the woman’s decision to pull her firearm and fire the warning shot was not justified given the circumstances. Some juries would acquit the woman. Others would convict her. The verdict is almost certainly largely a function of luck.
If the woman in the hypothetical is convicted, she will be sentenced to a 20-year mandatory minimum prison sentence under 10-20-Life. The judge would have no discretion to take into consideration the defendant, her lack of criminal history, the circumstances surrounding the “crime,” or the fact that she is almost certainly no threat to public safety.
Under current law, the only thing the judge may do is sentence the woman to 20 years in prison, where she will almost certainly die. This remains the case despite the fact that the author of 10-20-Life, former state lawmaker Victor Crist, has gone on record several times and explained that the law was never intended to apply in self-defense cases.
As Gaetz correctly notes, in passing “Stand Your Ground” the Legislature affirmed its desire that the justice system “favor victims over attackers.”
But 10-20-Life undermines this laudable goal in potentially terrifying ways. Imagine, for instance, that the woman sees the two men walking toward her. She reaches for the gun in her purse, but then remembers some the many horror stories of people who used a firearm in self-defense only to end up in prison. She chooses not to pull her firearm, and walks the other way. A few seconds later, the woman is beaten, raped and killed.
The “10-20-Life” law requires gun owners to weigh the prospect of a mandatory minimum prison sentence before deciding whether to use a firearm in self-defense, thus leaving them vulnerable to attack. This is intolerable.
To fix this shortcoming, the Legislature should pass a reform that would require judges to depart from a mandatory minimum sentence in any aggravated assault or battery case in which a defendant makes a prima facie case of self-defense, and in which the defendant was not acting in furtherance of another crime.
Such a reform (which last year took the form of an excellent bill by Second Amendment champion Rep. Neil Combee and Sen. Thad Altman) would send a strong signal that Florida takes seriously its obligations to protect citizens from violence, and that it also takes seriously its obligation to fully protect Second Amendment rights and the fundamental right of self-defense for all Floridians.
