Did Florida Really Just Expand Its "Stand Your Ground" Law?

Nicole Flatow of ThinkProgress thinks so, writing:

The bill to expand Florida’s notorious Stand Your Ground law became law Friday, after Gov. Rick Scott (R) signed a measure that immunizes individuals who fire or point a gun in self-defense or as a “warning” from criminal penalty. 

The National Rifle Association-backed bill extends Stand Your Ground-like protections to those who point a gun at an attacker or fire a gun as a self-defense threat or warning, expanding the scope of the discretion judges and juries retain to exempt shooters from criminal charges for gun violence. The bill gained traction after Republicans exploited the outrage over the 20-year prison sentence for Marissa Alexander, who fired a warning shot during an altercation with her abusive husband. The bill was then dubbed the “warning shot” bill, because a judge rejected Alexander’s move to invoke the law. But opponents were quick to point out that injustice in Alexander’s case hinged in large part on a draconian mandatory minimum sentence that required the 20-year prison term, insensitivity to domestic violence, and racial disparities that are already baked into the existing Stand Your Ground law.

The law is likely to expand immunity for violent conduct in as vague and sweeping a manner as Florida’s existing Stand Your Ground law, and could represent the newest mechanism for encouraging even more vigilantism.

I don't think that the law has the effect that Flatow claims it does. First, Florida law already held that pointing or firing guns as a warning was covered by existing self-defense law. And second, even if the law expanded the scope of what people can do when acting in self-defense, this expansion should probably be welcomed by those who want to see fewer injuries or deaths resulting from self-defense.



Florida Law Already Allows Defendants to Threaten Victims in Self-Defense

Regarding my first point, over at the Volokh Conspiracy, Eugene Volokh points out that the Alexander case that Flatow mentions has already been overturned by the Florida Court of Appeal. The court held last year that because Alexander was claiming self-defense in a case where she was not alleged to have injured the victim, the jury instructions that required her to prove injury to the victim should not have been given.

The Alexander case is not the only case on record reaching this conclusion. The court held the same thing in its 2011 decision, Brown v. State, ("Because the jury instruction on self-defense indicated that the defense applied only if the victim suffered an "injury," and the state argued that the instruction did not apply because no injury occurred to the victim, fundamental error occurred in the instruction on self-defense, negating appellant's sole defense."), and in 2010 in Bassallo v. State ("However, the inclusion of the word "injury" did not accurately and adequately state the law, because appellant was charged with aggravated assault, for which injury is not an element. Nor was there any evidence of injury to the victim. . . . This amounts to fundamental error.").

Controlling Florida case law already holds that defendants can use threats of violence to defend themselves. These same cases hold that when juries are instructed that the victim needed to have been injured in a case where the defendant is accused of a crime for which injury is not an element, these instructions constitute fundamental error. Because Florida law already allows defendants to claim self-defense when they are charged with criminal threats of violence, this new statute does not "expand" or "extend" the law. It simply confirms what the courts have already held.

Would Allowing Defendants to Brandish Firearms in Self-Defense Lead to Bad Consequences?

For purposes of this next argument, assume that Flatow is correct to say that the recently-passed bill did indeed expand the scope of self-defense. Is this a bad thing?

As Flatow points out, Florida's "Stand Your Ground" self-defense law does not require defendants to retreat before defending themselves. Critics argue that this is a very permissive approach to self-defense, although Volokh notes that this is the approach taken by most of the states (and Florida's law is nothing if you compare it with the under-discussed laws of Delaware, Ohio, and Virginia which I discuss in more detail here). Flatow argues that allowing defendants to justify brandishing firearms and firing warning shots as self-defense will lead to an increase in violent activities and vigilantism.

But consider the alternative. Flatow argues that even without the the law's expansion of self-defense law, Florida's Stand Your Ground approach is extremely permissive, allows defendants to harm innocent bystanders in a racially discriminatory manner, and promotes vigilantism. If the law does indeed promote violent activity to the degree Flatow claims, it seems like a bad idea to restrict claims of self-defense to defendants who cause some sort of physical harm to their victims. If the law were restricted in such a way, in order to take advantage of Florida's Stand Your Ground law, a defendant with a gun would need to shoot somebody in order to claim self-defense. Florida would be left with a law that encourages defendants to abuse self-defense laws, but only if they injure or kill others. And those who are in actual danger would be pressured into shooting those who are threatening them, since they would otherwise lose the option to claim self-defense.

But by expanding the law of self-defense so that it applies to defendants who brandish firearms or fire a warning shot, people would still be able to claim self-defense even if they didn't injure anybody. So even if Flatow is correct, and the Stand Your Ground approach encourages abuse of self-defense claims, those who are abusing the law will at least be able to abuse it without needing to shoot their victims. And those who are faced with situations where they are in real danger will not be pressured into shooting those who threaten them out of a fear that they may otherwise lose the option to argue self-defense altogether.

Self-defense law is a polarizing topic, and those who favor a restrictive approach to self-defense may rush to criticize any sort of state action that seems to expand the availability of the defense. But overly hasty criticism may undermine commentators' credibility when they overlook the existing state of the law, or when they inadvertently advocate for an even more dangerous self-defense regime than the one they are criticizing.