The Words and Actions That Legally Define a "Deadly Threat".

Are the state statutes written to be misunderstood?

The main objective of this Florida Gun & Self-Defense article is to educate gun owners about Florida self-defense law and use of force law. Ignorance of the state and federal laws is not an excuse for unintentionally breaking those laws.  It is gun owners’ responsibility to learn and abide by the law and practice safe gun handling accordingly. I am not a lawyer; if you need legal counsel secure a lawyer in your relevant jurisdiction. The following content is my opinion and interpretation derived from twelve years of online and self-education in Florida Self-Defense and Use-of-Force Law.

Memorize the Four Rules for Safe Firearms Handling. Mistakes will not occur by doing so. One, treat all guns as if they are always loaded with a round in the chamber, even when the gun is empty. Two, never point the muzzle at anything you ‘don’t’ want to destroy. Three, keep your finger off the trigger until your gun sights are on the intended target. Four, always be sure of your target and what is beyond it.

In addition, when you pull the trigger, think of all bullets as having a prosecutor and a very expensive lawyer attached to them. If you are unsure of any situations regarding gun usage or handling or what is lawful or unlawful, please refrain from carrying your firearm concealed until you have proper training and education. One unlawful act by mistake could ruin your life and the lives of others. Contact me, and I’ll point you in the right direction to give you the confidence to operate your firearm safely and legally.

Today’s firearms focus: The Florida Law definition of “Threat” and what constitutes a threatening act that legally allows the use of deadly self-defense.  We will look at self-defense and term definition statutes, which the evidence from your deadly self-defense case will be analyzed and judged to determine whether your act of self-defense was reasonably justified.

I have addressed the ‘threat element’ in several past articles but today would like to focus on the legal definition’s wording and determine if there is some level of uncertainty present. I will provide the statutes and my thoughts after each one. Note the sections in bold which will highlight the words and phrases which I find ambiguous, and that I believe are too vague and cause confusion and uncertainty in the mind of the conceal carrying individual.  

We will look at nine statutes which provide some context as to exactly what a deadly force threat is as defined by the words of the law. Since a person must determine when and if a deadly force event is happening it’s best to know what a felony is so we’ll start by looking at the legal definition of a felony.  

 776.08 Forcible Felony – “Forcible Felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

A felony which involves the threat of physical force or violence against you means what exactly? Consider the following: before physical force or violence occurs, according to Florida Law there could be a ‘non-verbal threat’ which you must interpret correctly. You’ll need to apply your reasoning to the non-verbal threat and then possibly respond with deadly force? The reasoning you use to kill will be scrutinized by six groups of people involved in the legal process; witnesses, police, investigators, prosecutors, judges, and juries, all who will determine if you reasoning was lawful from their perspective after looking at the evidence. Within that group of six people is a prosecutor, who gets paid to lie, distort, misinterpret, exaggerate, and play mind games and improve his career, at your expense. If you don’t have an attorney who knows how to successfully counter those tactics, your life will be ruined, even if you did in fact use deadly force exactly in accordance with the laws as they were written.

Conceal carrying a tool of death lawfully is a high legal-risk activity. And so many people are not prepared for the severity of the legal risk they’ve undertaken. When you put your gun in your holster, purse, or pocket today you should think, “I am one misjudgment away from life in prison” --one misjudgment of the physical battle and the legal implementation of the law. I have studied use-of-force law daily for thirteen years and I embrace that mindset everyday as part of carrying a pistol for lawful self-defense because I know I have reduced the odds of misjudgment to a very low level by training within the ‘ambiguity factor’ of the poorly written laws I abide by.

Now that I have your undivided attention, let’s get back to the all-important Statutes. Should you simply use the wording at face value and decide to act with deadly force due to a non-verbal threat, with no physical threat, force, or violence present? I say no. You should become educated and trained so you know how to process these types of jeopardy situations and be skilled enough with your gun to wait until there is no question or doubt, and plenty of evidence, that you in fact needed to use your gun.  

Mistakes are commonplace in these types of situations. Few people can make life-saving analysis in less than a second without extensive education and training, and even then, the odds are against them due to the way law is written and argued in court. But if you know the risk and or weaknesses within the words of the law as it’s written, then you can train to negate the innocent mistakes in judgment which poorly written laws produce.   

Let’s look at what the law says a credible threat is, and note that our scenario above, namely a non-verbal threat, is included in the legal definition because the word “threat” is in the Forcible Felony statute.  

Credible Threat. S.S. 784.08 (1) (c )---“Credible threat”  means a verbal or nonverbal threat, or a combination of the two……implied by a pattern of conduct, which places the person……in reasonable fear for their safety or the safety of their family members or other closely associated with them, and is made with the apparent ability to carry out the threat…….It is not necessary to prove the intent to actually carry out the threat.

Let’s think this through,  it’s a non-verbal gesture or act directed at you, conducted in a manner which shows an apparent ability to do it because he looked serious, capable, and angry, which caused in you a reasonable fear…….but because you read statute 784.08 before this event, you know that you don’t need to think any of this through because it’s not necessary to prove intent to carry out the threat.  Therefore, could a man giving you the middle finger while having a seriously angry intimidating demeanor, who’s acting irrational ten feet from you, be intending to rape you. And will the aggressive prosecutor agree? And will the jury be convinced by the prosecutors aforementioned tactics.

Let’s move to some other types of crimes that occur often and which you’re most likely to experience.

784.011 Assault. — An “assault” is an intentional, unlawful threat by word or act to do violence to a person, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear……. that such violence is imminent. Statute 784.021 “Aggravated Assault” is an assault wording-definition, but with a deadly weapon.

Here we have a similar word salad similar to the threat statute. The words, “By word or act, to do violence, which creates a well-founded fear” is another ambiguous statement. I can come up with all types of scenarios that would be questionable and uncertain. And if you’re uncertain as to what scenarios are within the meaning of these words, some members of the six groups of the judicial system won’t fare any better. The prosecutor and defense lawyer will battle back and forth as to what are the best words to describe the evidence, forming comparisons with the words of the pertinent laws. In the end, he who spins it best wins the decision that comes from the jury. The stress from this experience could kill you! No? One this is certain; your life will not be the same afterward.

784.03 Battery; felony battery. — (1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.

784.045 Aggravated battery. — (1)(a) A person commits aggravated battery who, in committing battery: 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or 2. Uses a deadly weapon. (b) A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

The Battery statutes are worded unambiguously and can’t easily be misunderstood, with perhaps the section dealing with knowing if the woman was pregnant, which could be unknown in the early stages of pregnancy.

Consider how the process of ‘law implementation’ occurs in a deadly self-defense event. First ‘the lawful gun owner’ uses law implementation when he uses his gun in deadly force. Then the police implement the law when evaluating the evidence, followed by the investigators, prosecutor, defense lawyer, judge and jury. That’s a lot of law implementation going on. Given the wording of the statute, who’s to know how any case will end up, but one thing is sure, the law business will be booming.

It should be said that the criminal element of society is not nearly as profitable as a law-abiding citizen is when they are put through the legal money machine of the justice system. Employed tax paying earners who unintentionally, and mistakenly broke an ambiguous law, are what keep the legal system going.  

Let’s consider the Use of Force statutes. Again, I will put in bold the problem areas in the statutes which are subject to numerous reasonable interpretations. And after you read each section, integrate your own understanding by asking yourself the following questions,” what for, what way, where, when, why, how come” for each of the words in bold. Then ask yourself if you can produce evidence from the scene of deadly force to back the answers to these questions. Your evidence must be in harmony with the words in bold.

776.012 Use of Threatened Use of Force in Defense of Person – Non-Deadly and Deadly.

(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s 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 he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another 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.

776.013 Home Protection; Use or Threatened Use of Deadly Force; Presumption of Fear of Death or Great Bodily Harm. There are four sections in this statute, which provide what is known as “The Castle Doctrine.”

(1) A person who is in a dwelling or residence in which the person has a right to be, has no duty to retreat and has the right to stand his or her ground and use or threaten to use:

(a) Nondeadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force; or

(b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

(2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(3)     Lists four disqualifications which do not serve our purposes for understanding a ‘Threat” imposed on or issued from a law-abiding common person.  

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

It’s clearly understood that this statute provides the same legal conditions and reasoning which SS 776.012 provides a person away from their home.

Basically, the action of dealing with a threat is the same in both situations. And the method by which a credible threat is determined remains the same in all cases of self-defense whether in Your Castle (defined as dwelling, residence, or vehicle) or in the public domain where a person has a legal right to be and not in the process of criminal activity. The words in bold in both statutes are the same.  

The following words which I also put in Bold above need to be contemplated and applied to real life scenarios in your mind, as you train implementing SS 776. And your training and practice should produce those risky scenarios to enable you to make the necessary changes to legally handle them. Again, note these sections in bold. “Reasonably believes, is necessary, imminent use, in accordance, in the process of, had reason to believe, was occurring, attempts to enter, threatening, threaten”.

The challenges of understanding the legal statutes, and all the possible meanings (grammatically possible given the ambiguous, vague, sentence structure and word selection and usage) are intentional as designed, given the educational level of the law makers who constructed them. They’re not that stupid or inept. It was purposed exactly the way the statutes were signed into law.

Law abiding citizens’ attempts to apply poorly written laws to real-time scenarios, do so playing against a stacked deck, in a sick game similar to Russian Roulette. The lawmakers know full well, when they ‘strategically constructed’ the statutes that innocent law-abiding people would make mistakes that could potentially destroy their lives. They did it anyway with full knowledge of the results that would occur.

The sick game continues. After the evidence at the scene is collected to prove the essential aspects of the event in question, it will be analyzed under these poorly written laws and presented in court by the prosecution and the defense, to persuade effectively a jury that will not have any experience with the case they are listening to, nor understand how it is being manipulated by the prosecutor. They’ll be just as unsure as everyone else, while the court salesmen sell their products of guilt and innocence. The jury is there to do a job they’re not qualified to do nor able to competently understand.

A person who has never been forced under duress to use deadly force cannot produce reasoning they don’t possess to begin with, no matter how thorough the court proceedings were. Jurors are asked to determine your reasoning, without having been there, without knowing nor understanding any relevant truths of the event as it actually occurred within extreme duress situation. Incompetent jurors decide if your actions were lawful and just or unlawful and unjust.

The judicial system in most cases works in collaboration with the lawmakers to create laws which will ultimately create business. The very proof of this is that case law plays a huge part in the judicial process but none of that information is available to the public without a concerted inconvenient effort. Jury instruction is also not readily accessible to the public and takes considerable time, effort, and money to obtain. In almost all cases, hiring a lawyer is the smartest move to make, which is the main objective. Educating the public by publishing easily accessible case law and jury instructions to assist in understanding the poorly written laws is obscured or put behind a paywall, because the legal profession’s income would significantly diminish otherwise.  

When they say Justice is Blind, I would argue that isn’t not describing the objectivity and the unbiasedness of the legal justice system. Instead, it’s describing the flawed corrupt processes in legislation and jurisprudence---to make you legally blind. Consider the flawed system of the jury selection process, which is anything but capable of producing qualified jurors for the case at hand. It’s worse than a crapshoot. Throw in the purposed ambiguity of the law and it’s worse than the rolling of the dice. It’s the blind jury imposing their vision of justice on a legally blind defendant.    

For this process to serve justice and truth, the evidence must be complete, communicated, understood, and presented effectively while addressing the jury’s ignorance of what they are judging. Otherwise, I would argue that most juries are not and cannot really be “The Finder of Facts”.  

Besides the flaws and weaknesses in the legal system, consider steady decay in the general public’s ability to implement objective truth in their personal lives i.e., The Jury Pool. The commonplace person’s reasoning on all things of their life begins within their emotionally driven mindset. It is this mindset which determines what is true, and it originates from their experiences, and is completely subjective in nature. There is nothing ‘absolute’ but themselves and their feelings. Objectivity is unacceptable and therefore unobtainable, and the very mentioning of it is thought by them to be a lie. It is this type of person who will most likely be on your jury.   

I used the following two statutes in last week’s article but will mention them again because they serve to drive home my point; that statutes are poorly written, on purpose, to create confusion and misconceptions in the minds of lawful people who live by the US Constitution and specifically the Second Amendment.  

Take the time to look up these statutes and note the wording. 790.053 Briefly Open Display of Firearms, and to 790.10 Improper Exhibition of Dangerous Weapons or Firearms. You’ll see words and phrases such as “well-founded, apparent ability, to briefly and openly display, ordinary sight, of another person, in the presence of, in an angry or threatening manner, exhibit in rude, careless, angry or threatening, all used to guide you in variations of public weapon display situations. How should you interpret those words and how will a prosecutor use those words in your case? It’s like playing Russian Roulette with six bullets in a six shooter.  

Also note that these two statutes are in direct contradiction to SS 776.012 and SS 776.031 explicitly say you can only “threaten to use deadly force” in a deadly force situation. This puts you in a “Decision Hell” if you attempt to reconcile these two statutes with the two statutes above, SS 790.53 and SS 790.10. Again, I ask, are they stupid? No, they’re not! What are they then? You supply the adjective. I’m too tired.  

 They say we always need a lawyer when dealing with the law, due to the law being written in legalese. While it is true that formal law is written within the language of law. It still remains true that lawyers many times, are also unsure of the meaning and application of the statutes and are flying blind and must resort to salesmanship and skillful semantics purposed to influence and manipulate the judicial system. I believe the law was written this way purposely to ensure the security of a high paid income.

So again, I ask you, do you practice and train to address the challenges the Florida statutes impose? I bet you don’t. And the reasons are many. But I would encourage you to contact me. I’ll provide assistance that will reduce the jeopardy that legally enslaves you.

Article Information Sources: Jon H Gutmacher, David S Katz and James D. Phillips Jr. Andrew Branca.  

This article’s purpose is to incentivize the reader to learn the laws required for lawful gun usage. My hope is that all conceal carry gun owners will become legally proficient and physically capable to “Aim to Win the Physical and Legal Battles” should a self-defense situation occur.” Know the Law, Learn to Shoot.”

Today’s article is also published at FloridaGunSelfDefense.com which is my business website.

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

Dave has been a firearms instructor and trainer since 2012. He is skilled in advanced tactical-gun and self-defense gun operation, in accordance with Florida gun law and use-of-force self-defense law. He is not a lawyer but has studied Florida Use-of-Force Law and Gun Law for the last twelve years. Dave’s articles are his interpretation and opinion and do not constitute legal advice for you. If you need legal advice, secure legal counsel in your relevant jurisdiction. Dave is an adamant supporter of an original historical literal interpretation of the Second Amendment. You can contact him at davidpdouglass@hotmail.com