Friday, December 20, 2013

FL:Defensive Display and (warning shot) Bill Supported by Public Defenders, Opposed by Prosecutor

Arizona passed a defensive display law in 2009.  Now Florida is considering a very similar law, "Threat of Force to Stop Attackers", HB89.   The bill applies the same protections to the threat of deadly force as the current law provides for the use of deadly force.  The Arizona law was prompted by a case in which  the victim was going into the court house for the trial (he was accused of aggravated assault) when the prosecutor let the defense know that they had a third 911 call that showed that the victim was telling the truth.  Both the victim and the aggressors had called 911.  Then the case was dropped, but the aggressors were never prosecuted.

Bill Cervone, the Florida State Attorney (prosecutor) quoted below, is being disingenuous to a surprising degree.  It is not juries who decide the vast majority of cases.  It is prosecutors like him.   They have enormous power to pick and chose which cases are prosecuted, and to offer and promote the plea bargains that they make, with the ability to threaten to prosecute or not prosecute other people (often related), take away children, and confiscate property.   The threats may not always be credible to a trained attorney, but often, there is no attorney involved.  That is the way the system currently works.  A law that protects innocent defendants takes away some of that power, and the State Attorney seems to find that a threat.   To claim that  "juries are the place we test anyones particular stake or claim in a case"  is a fabrication for the vast majority of cases.  From

GAINESVILLE - A warning shots bill is gaining traction, backed by the NRA and now the Florida Public Defender Association.

The bill would make it legal to fire a warning shot or show someone you have a gun if you feel threatened.


State Attorney Bill Cervone, 8th Judicial Circuit: "it's my opinion that juries are the place we test anyones particular stake or claim in a case."
 This case shows how the justice system works in practice.   Someone is arrested and charged with a crime.  The prosecutor decides how the case should be disposed, taking into consideration the political aspects of the case.  The prosecutor makes the deal so appealing, considering the enormous risk and cost of defending oneself in a jury trial, that the vast majority take the plea deal rather than take the risk of a jury trial on a charge with potential felony convictions and years in prison.    That is the power that the prosecutors do not want to give up by allowing a defensive display law in Florida.

It would be different if the current law mandated a maximum $1,000 fine or 30 days in jail.   That would be bad enough, potentially leading to loss of job and enormous stress for an act in which no one was actually harmed.   But that is not the case.   In Florida the risk is much, much greater, a felony conviction and a *mandatory* 10 or 20 years in jail.   The threat of those sorts of punishments are what gives the prosecutors their enormous power.   There is no accountability for prosecutors, except for the almost never exercised possibility of losing the next election.  Prosecutors have as near complete immunity for their actions as the law allows. 

The only controversial part of the proposed bill is that which allows for "warning shots".    The House Judiciary Chairman explains the reason for the "warning shot" inclusion in an article from the sunshinestatenews.
"I'm very hesitant to change anything in 10-20-Life," Baxley said. "Except that I've run into this more than once, where constituents have gotten into this narrow space where they were trying truly to avoid a conflict by a warning shot, and instead wound up charged and having to plead to a felony of lesser degree to avoid a prison sentence because they just were afraid to face a jury."
The current dogma among self defense instructors is that warning shots are a bad idea.   I have taught that policy myself for over 15 years.   I have also read and heard of numerous instances of where "warning shots" seem to have worked, and a few where they have gone spectacularly bad.  I still think they are generally a bad idea, but every policy has exceptions, including the blanket ban on "warning shots".   I do not believe that a person who was involved in a defensive situation, who fired a shot where no one was harmed, deserves to be threatened with a mandatory 10 years in jail to provide incentive for them to plead guilty to a lower charge.

We ran into the same situation of prosecutors defending their turf in Arizona in 2009.  Their concerns have been shown to be completely unwarranted.  Here is Marion Hammer explaining the necessity for the Florida "Threat of Force to Stop Attackers" bill:

10-20-Life was never intended to be used against citizens who, in an act of self-defense, threatened the use of force to stop an attacker.

It was never intended to be used on citizens who, in fear for their own safety, threaten to use force to stop an attack.

Yet that’s how some prosecutors are using it. Depending on the seriousness of the threat, they’ll try to put you in prison for 10 years or 20 years for threatening to use deadly force to protect your own life or the lives of your loved ones.

So the message from those prosecutors seems to be, if you actually use force in self defense — the law protects you But threaten to use force in self-defense, and they’re going to put you in prison for 10-20 years.

That is the cold hard reality of how some prosecutors are treating law-abiding people who never would have been in the system if they had not been attacked and in fear for their own safety. 

There are people sitting in prison today who should not be there – but they are because prosecutors abused their discretion and violated the intent of 10-20-Life. This bill will stop that. Please support it. 

There you have it.  The purpose of the bill is to reign in abusive prosecutors.  It is not hard to understand that prosecutors want to hang onto their nearly unlimited power.

©2013 by Dean Weingarten: Permission to share is granted when this notice is included.
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