Stand Your Ground and 10–20-Life: A Parable
By: Greg Newburn
Tags: Self Defense, Florida, Stand Your Ground, Sentencing, Guns

You’re a small business owner in a large Florida city. Police in your city kill an unarmed man. In the days after, you watch on TV as thousands of citizens take to the streets in protest. Most seem peaceful to you, but some have used the opportunity to commit violence, riot, and loot neighborhood stores. A friend on Facebook said some of the rioters came from out of state. You commented that law enforcement was doing a great job, and you hope they can get things under control quickly.

The riots get worse, and now they’re getting closer to your business. You begin to worry, and decide you need to make sure everything is ok at your shop. On the news last night you saw a man get beaten in the street, so before you leave you grab your handgun, for which you have had a concealed carry permit for years. Your spouse asks if that’s really necessary. You say better safe than sorry, and head to your store to make sure all is well.

You’re relieved to find your store still standing. Others in the area weren’t so lucky. You look around, confirm the area is secure, and take the next hour or so to board up the windows. As you’re finishing up you notice a mob of looters is near your store. You head back inside. You hear the mob approach, and you begin to fear they may destroy your business like they did the others. You open the door, step outside, and shout at them to leave. They’re much closer than you expected, practically right on top of you, and they keep coming. You don’t perceive a safe exit and it’s too late to call 911. Panicked, you fire your gun into the ground to try to scare them off. It works; the mob disperses. You retreat inside your store, and when all seems calm again you run to your car and flee home.

You don’t call the police because you know they have their hands full. You made it home safely, and it looks like the mob has made its way across town, away from your store.

Several days later, a law enforcement officer knocks on your door. You recognize him from your softball league and invite him in. He thanks you and steps inside. You ask him what’s going on.

The officer gives you some bad news. Turns out when you fired your gun, a bullet fragment ricocheted off the pavement and landed in a man’s leg. The man was hospitalized, but the wound was not serious. He was discharged the same day and is expected to make a complete recovery. You tell the officer what happened, and that you’re thankful to hear no one was seriously injured. You ask if there is anything you can do to help. Is there paperwork you need to sign?

The officer sighs and says unfortunately he isn’t here just to tell you that news. He’s here to place you under arrest. The State Attorney reviewed the file and watched a tape of the incident captured on a camera at a nearby store. She does not believe you fired your gun in self-defense. She believes you did not need to open the door to your shop, or step outside, and that you went looking for trouble. She says if you were really afraid you wouldn’t have fired a warning shot. Finally, she believes the fact that you ran away and failed to call the police proves you knew you’d committed a crime.

The officer says just between you and him, he thinks the State Attorney is chasing headlines. He knows you’re not the kind of person who’d do something like that, but it’s out of his hands. The State Attorney is charging you with aggravated battery with a firearm.

You almost pass out. After a few minutes you gather your wits, but you remain in disbelief. You plead with the officer, and remind him you fired only because you feared the approaching mob might attack you or your store. It was self-defense! He apologizes again. If it were up to him, he wouldn’t arrest you. Hell, he’d have probably done the same thing himself. In fact, he wishes he could arrest the so-called “victim” for participating in the riots.

You ask for the “victim’s” name, thinking maybe if you talk to him this could be resolved. But the officer says he can’t tell you anything because Marsy’s Law protects victims’ rights. You protest and tell him you were the victim! He says again if he had his way things would be different. Then he reads you your rights, places you in handcuffs, and puts you in the back of his cruiser.

You take a second mortgage out on your home to make bail and hire an attorney. Your attorney tells you if you are convicted at trial, the mandatory minimum sentence will be 25 years in prison, under a law called 10–20-Life. (You’ve heard of that law, and vaguely remember when it passed thinking it made sense to lock thugs up and throw away the key.)

Your attorney does give you some good news, however. In Florida, defendants can file a motion for immunity from prosecution based on the claim that the action for which the defendant is being prosecuted was justified under Florida’s self-defense laws. You tell your lawyer to start writing that motion! A way out!

Your attorney tells you there’s a catch. The state has offered a plea deal. The state will reduce the charges if you agree to plead guilty and accept a day for day prison sentence of ten years. However, if you file an immunity motion the prosecutor will take that offer off the table and there won’t be another one.

You wrestle with the decision, but you are convinced of your innocence and you refuse to plead guilty to something you didn’t do. Plus, you don’t think you can survive ten years in prison. What will happen to your children?

Your attorney files a motion for immunity from prosecution, arguing your actions were justified under Florida’s self-defense laws. The prosecution urges the judge to deny the motion, arguing the same points that led the State Attorney to file charges in the first place, i.e., that self-defense is available only if a defendant reasonably believes deadly force is necessary to prevent the imminent commission of a forcible felony, and the fact that you opened your store’s door, fired a warning shot, and never called the police are proof you did not reasonably believe such a threat existed.

The judge takes the bench to announce the ruling. She says this was a very close case — perhaps the closest she can remember. She really struggled with this one, but in the end she felt the state met its burden, if barely. She denies your motion and rules that you are not immune from prosecution.

Your attorney calls the prosecutor and asks her to reconsider a plea deal. Your lawyer says there’s no reason to put you in prison for 25 years when just a few days ago the state thought 10 years was sufficient. The prosecutor tells your lawyer you should have taken the deal they offered when you had the chance. “I guess you can’t fix stupid,” she says, and hangs up.

At trial, your lawyer tells the jury you’re a small business owner, a good spouse and a good parent — a good person. You’ve never been arrested before, much less spent any time in jail. Other than a couple speeding tickets when you were younger and had a bit of a lead foot, your record is exemplary. You were in the wrong place at the wrong time because you wanted to protect your life’s work, and at the moment you fired your gun you genuinely feared the worst. You reacted the way any reasonable person would have in the same situation.

The prosecutor tells the jury a different story. She says you are a vigilante who was looking to settle an ideological score. She says you weren’t afraid, you were angry and upset and trying to punish the protesters, teach them a lesson they wouldn’t soon forget. She says you acted recklessly, and you’re lucky you didn’t kill someone. She even shows the jury one of your Facebook posts where you urged law enforcement to “take back control and do something about the looters.” You didn’t see anything wrong with what you wrote.

The victim — “victim,” from your perspective — tells the jury he wasn’t doing anything wrong. Yes, he saw some looting, but he and his group were exercising their First Amendment rights peacefully. You, on the other hand, were angry as you screamed at them. (Your lawyer objects, and the objection is sustained. The judge tells the jury to ignore that description, as if that’s possible.) He says when he heard the gunshot he’d never been so afraid in his life, and he was sure he was going to die when the bullet struck his leg.

In closing arguments, your lawyer repeats the claim that you were afraid of an approaching mob, and did only what you thought was necessary to protect yourself and your property. In fact, your lawyer said, anticipating exactly this scenario led the Legislature to expand self-defense laws in what they called “anti-mob” legislation some years back.

The jury is sent to deliberate. They return after a couple hours.

Guilty.

Again, you nearly pass out. You sit down, slump in your chair, and listen to your children crying a few feet behind you. You overhear one juror ask another if she’s sure they did the right thing. The other juror responds, “Either way, the judge will probably just give ’em a slap on the wrist.”

In fact, the judge confirms what you already knew. The Legislature has tied her hands with a “mandatory minimum” sentence. The lowest sentence she can impose for this conviction is 25 years in prison. No parole, of course, but also no early release for good behavior. 25 years, day for day.

If it were up to her, the judge says, your sentence would be different. She believes you probably thought you were in danger, but also believes you acted unreasonably. She would definitely punish you, and probably with prison time — she does not take gun crimes lightly, go check her record — but she believes 25 years is unreasonable given your record and the facts of your case.

The judge says if the Legislature changes the law to give her some discretion in self-defense cases like this one, she’d gladly change your sentence to something more appropriate. She says you will be eligible to apply for a sentence commutation in 12.5 years, and if that’s successful you could be out in 20. She admits that’s a long shot — only five commutations have been granted in the last decade — but she’d be happy to write a letter of support. The judge apologizes to you and to your family, imposes the mandatory sentence, and bangs the gavel.

You look at your family one more time as a bailiff walks you out of the courtroom. You will remain in the custody of the Department of Corrections for the next 25 years.