Friday, Florida Gov. Rick Scott signed HB89, which mainly makes clear that self-defense laws — including the Florida no-duty-to-retreat law (often called “stand your ground”) — apply equally to defensive threats of force, including warning shots, as they do to actual force. This seems to me quite right: whatever one might think of the possible scope of self-defense, and of no-duty-to-retreat laws, if actually killing or injuring someone is justifiable self-defense, then threatening to do so should be as well.
The law also waives the statutory mandatory minimum sentence for what is often called “imperfect self-defense” — a situation where a person sincerely but unreasonably believed that he or she was being threatened. In such a situation, the person would still be guilty, because the self-defense defense wouldn’t apply; but the statutory minimum sentence, which can sometimes be 20 years, wouldn’t apply, and the court would be free to sentence using the more usual sentencing considerations. (This waiver only applies if the court finds that the attack didn’t take place in the course of the defendant’s committing another crime, and the defendant doesn’t pose a threat to public safety.)
The statute was apparently motivated in part by the Marissa Alexander case, in which the jury was (among other things) instructed that self-defense “is a defense to the offense with which [Alexander] is charged if the injury to Rico Gray Sr. resulted from the justifiable use of deadly force” (emphasis added); the instruction implies that, in the absence of injury — i.e., where there’s just a threat or perhaps just an attempted injury — there might be no self-defense defense. Indeed, four years ago a Kansas court held that Kansas self-defense law doesn’t apply to brandishing, threats, or even unsuccessful attempts to use force.
As it turns out, Alexander’s conviction was overturned last year by the Florida Court of Appeal, and that court held that Florida law already did allow self-defense as a defense even in the absence of injury inflicted by the allegedly defensive act; other courts had also reached similar holdings. Nonetheless, this statute makes that clearer. (The contrary Kansas decision I mentioned above was also overturned by statute.)
Note that part of the problem in the Alexander case and other cases might have been that the suggested pattern jury instructions, promulgated by the Florida Supreme Court, erroneously contained the “injury” language. (Though such instructions are promulgated by the courts, they are not generally considered binding authority, and may be challenged on appeal on the grounds they don’t properly summarize the relevant statutes or precedents.) It’s possible that a fix to the jury instructions would have sufficed to solve the problem, and the Florida Supreme Court already issued an alert — even before the bill was enacted — that the self-defense instructions “are currently under review by the Committee on Standard Jury Instructions in Criminal Cases because of recent legislation or case law.” In any event, it seems nearly certain that the jury instructions will be fixed now, and promptly.