Self Defense Threats, Good or Bad Idea?

Florida Use of Force Statute 776.012 use of the word “Threatening” Examined

Please go to the FGSD Article Intro page to read the main objective for this weekly article, my disclaimer, and to review the Four Rules for Safe Gun Handling, and introduction to this article. 

My hope is that you will find this article to be thought provoking enough to incentivize you to further your ability to know the law and to effectively run your gun in self-defense. To receive the full article in your email please consider becoming a paid subscriber at $6 per month or $60 per year on my Substack website FloirdaGunSelfDefense.net. 

Today’s Lawful2Shoot? Focus:  A Comparison of The Florida Non-Deadly Force and Deadly Force Statute Wording and Meanings.  

In Florida’s Use of Force Statute 776.012 subsections (1) Non-Deadly Force, and (2) Deadly Force, there are different words used to instruct the lawful conceal carrying individual on how to lawfully proceed when they encounter a non-deadly and or deadly threat of violence.  It should be noted that both ‘states or levels of violence’ can become the other i.e. non-deadly to deadly and deadly to non-deadly during the same violent encounter. And it is this ‘transition period’ as well as the ‘initial decision period’, where mistakes occur in determining the ‘imminent threat level’ you’re facing, which often results in felony charges.

Here are the two subsections of the statute which I’ve edited and added emphasis for the purpose of focusing on the differences between the two subsections wording, and how their meanings differ.  

I will be publishing several articles addresses statute 776.012 (1), (2) wording over the next few weeks. The following is part one of seven, which will focus on the word, “Threatening” as used in the statute.  Please note the two sections I want to bring to your attention within each subsection which I’ll distinguish by bold font and standard font. And also note the specific words within the bold and standard fonts which I’ve put in italics.

776.012 Use or threatened use of force in defense of person. —

(1) A person is justified in using or threatening to use force, except deadly force, when and to the extent that the person reasonably believes that such conduct is necessary to defend against the imminent use of unlawful force.  A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force if they reasonably believe that using or threatening to use such (deadly) force is necessary to prevent imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

After reading this two-subsection statute, do you recognize how the lawmakers set you up for failure? If you follow this law to the letter, you’ll greatly increase the odds of you being seriously injured or killed or you’ll end up most likely being guilty of an aggravated assault with a deadly weapon or of mutual combat, which in both cases you’d lose the legal claim of self-defense.

I would like you to note that both subsections seem to allow for “Threatening” and not just “Using”, so it would seem that you have discretion to threaten instead of use deadly or non-deadly force i.e. you can threaten your attacker instead of shooting them.

But if you assume or believe this is true you are one hundred percent wrong! 

The problem is the only moment in which you can legally threaten your attacker is when the attack is “IMMINENT”. And if the attack is indeed imminent, a threatening act would amount to an additional step ‘before’ using necessary deadly force or non-deadly force when the violence is already starting.  Doing this, therefore, would take life-saving, and bodily damage-saving, precious time to accomplish, when tenths of a second count. And in reality, would greatly increase the odds that you’ll fail to save your life by preventing imminent serious harm or death or to defend against imminent use of non-deadly force.

Let’s say you happen to be slow on the draw from concealment and you know this about yourself, and you plan for this problem when you practice. One day a person steps out of the shadows, ten feet in front of you, and steps directly into your path of travel holding a knife. You instinctively respond by lifting your shirt and placing your hand on your holstered pistol. This threat results in the threat running away into the shadows. You believe you legally threatened deadly force in the most passive manner possible when in an imminent deadly threat situation. So then, you’re all set physically and legally. Right?  

Wrong. The assailant ran behind a building and called 911 to report an armed person threatened to shoot him and he had to flee for his life. He describes what you were wearing to the 911 operator. A police unit just happens to be one block away and responds and immediately sees that you fit the description and stops you for questioning. After officers listen to both sides of the story they arrest you for aggravated assault with a deadly weapon. You tell them ‘he had a knife and you feared for your life’ but they say they did not find a knife on the guy you threatened. It’s your word against your attacker’s word.

The legal machine will be the determiner of facts in this case now, so it’s time to lawyer up after you are arrested for aggravated assault with a deadly weapon.

In this case you followed the law to the letter hoping to not kill a criminal while saving his life and your life. But the reality of this situation is that you’d been in a much better lawful state if you just drew your sidearm and shot the guy while he was holding the knife instead of revealing that you were armed. The knife is the key piece of evidence that justifies your threat of deadly force and that you were facing a real imminent deadly threat, but without the evidence of the knife you become the felon, and injustice wins due to the wording of this statute, and an assailant who knew how to use the law against his victim.  

In the case of the non-deadly force subsection wording, it seems again, as if you are given the right to ‘threaten’ your attacker but then there is the wording, “when and to the extent” you reasonably believe non-deadly force conduct is necessary to defend against IMMINENT unlawful non-deadly force.

So, imagine again, a scenario where you take the time during an actual IMMINENT non-deadly attack to threaten to meet violence with defensive violence just before you physically engage in violence. Insane, right? Odds are you’ll lose that conflict due to taking the time to threaten him hoping he’ll not attack. The risk of you losing this confrontation goes through the roof.  

But let’s think this process through further. What if you do threaten to use force on an attacker before the actual physical conflicts begins, and there is proof of that threat. Will the prosecutor and jury find that your physical and or verbal threat to use non-deadly force before the physical altercation began, actually is the proof that your threat was consistent with actions in a mutual combatant altercation?

I believe that threatening non-deadly force violence increases your legal jeopardy and will result in the loss of the legal ability to justify a claim of self-defense. But you were believing all the while, by again taking a passive approach to defuse the situation that you were being lawful? But the prosecutor convinces the jury that your threat was antagonistic in nature and not defensive in nature---who is to say what threatening act is one way or the other? Right? A person would have to have been there to really know your intentions and the people judging your case will have to rely on their ‘feelings’ influenced by the prosecutor.  In the end, you lose your legal claim to self-defense.

What most people do not realize when they read state law, is that the language used are legal terms and words which have been used in legal cases for many years. There are rulings and meanings attached to these legal terminologies which are derived from different contexts in various historical criminal cases. Therefore, your actions will be compared using the language established in the worst of the worst criminal case wordings and terminologies which resulted in convictions.

Therefore, in this statute the words and phrase, “Threatening, Use, When and to the Extent, Reasonably Believe, Imminent, Force, Necessary”, will be distorted, exaggerated, re-contextualized, misused, and misapplied, on purpose, by a prosecutor whose main goal is to win the case by any means, and he’ll then persuade a jury, who reasons within ignorance your actions, without being there in the moment, without understanding how violence works in reality and more specifically, how violence in the day in question occurred.

From an air conditioned courtroom, they will be judging what they ‘feel and imagine could be true’ instead of relying strictly on whether the prosecution’s case successfully presented evidence ‘proving beyond any reasonable doubt that you, the defendant, is guilty, which certainly will hinge on their personal feeling about the words “Imminent" and “Threat”.  

Juries are allowed to find a defendant guilty if they ‘Feel’ there is some doubt to the defendant’s claim of innocence. The prosecutor creates their feeling, namely that the defendant was guilty because his threat proves premeditation to kill or maim which leads to establishing “Reasonable Doubt” to the defendant’s innocence—the defendant can’t be innocent if he issued that threat, right?

Subjective mindsets dominate the majority of the public today. They don’t know how to think any other way, especially in serious life matters, such as judging someone from a jury box for a charge regarding violence.  

To hell with judging whether or not the prosecutor proved beyond any reasonable doubt the defendant was guilty by the evidence alone. The prosecutor only needs to make the jury ‘feel’ emotionally about the case instead of using actual evidence presented in the court room.

Parts two through seven will address the words, terms, and phrases, Use, When and to the Extent, Reasonably Believe, Imminent, Force, Necessary.

My Information Sources: The following sources are the basis upon which I write my articles. I own all their publications. My conclusions, opinions, and assertions mostly are in line with these sources’ content however my usage and applications of their content are based and arranged according to my personal approach to real-life self-defense situations which I have encountered and believe I could possibly encounter in the future.

This order reflects the timeline of my education in the legal aspects of firearms, self-defense, and use-of-force law, during the internet age. Prior to 1998, I learned via gun-culture osmosis.  The order of my awakening: Rory Miller, Massad Ayoob  Andrew Branca Jon H. Gutmacher Katz & Phillips CCWSafe , and many other self-defense, force-on-force, and use-of-force, training content sources in books and on the internet.    

Please remember to click the “Like” button at the bottom of the page and leave a comment or a suggestion, I would greatly appreciate it, thank you.

Lawful Conceal-Carry Gun Owners, “Aim to Win the Physical and Legal Battles by Knowing the Law and Learning to Defensively Shoot.”

Florida Gun & Self-Defense offers firearms and self-defense training and education. Single or group classes or customized training are available. Visit FloridaGunSelfDefense.com for more information. Or call Dave Douglass at 863-381-8474 

I have been a firearms instructor and trainer since 2012 and a skilled tactical and self-defense gun operator since my training began in my twenties. My content is formulated in accordance with Florida gun and self-defense laws. I am not a lawyer but have studied Florida Use-of-Force Law and Gun Law for the last twelve years. My articles are my interpretation and opinion and do not constitute legal advice for you. If you need legal advice, secure competent legal counsel in your relevant jurisdiction. I am an adamant supporter of an original historical literal interpretation of the Second Amendment. You can email me at davidpdouglass@hotmail.com

Please note that this article if free, i.e. no paywall imposed. But parts 2-7 there will be a paywall after the introduction. Please consider supporting my work. Many hours of research and work goes into each 1500-word article let alone the 3500–5000-word articles, which take several days.