Legal Q&A with Jon Gutmacher, Author of Florida Firearms: Law, Use and Ownership

LEGAL Q&A

Question: I recently saw a video that took place in a take out pizza shop. A female was causing trouble about her order. There were about 8 people in line. She was giving this one man trouble who seemed to be minding his own business talking on his cell phone. The female went out and came back with her boyfriend who was a very large 300 lb man (convicted felon) who went over to the man on the cell phone and started beating the hell out of him. No one in line tried to help this poor man. Could I have pulled my concealed weapon and tried to stop him using deadly force if needed?

Answer: It's a very dangerous thing to do since the issue will be whether he's using deadly force. Plus, once you pull it -- things will either stop or escalate. You will be forced to either hold him at bay in close quarters or shoot the SOB.

What if he's armed, or he manages to disarm you? If you're lucky -- he'll run (if so, let him go). Nobody but you will really care, and the victim may even not care enough to stick around or back you. The assailant’s girlfriend will testify against you making some B.S. story up, and the other useless citizens may or may not back you up. One or two may even go the other way. That's why I think carrying pepper spray or the new Taser (available in April) as a backup is a good idea.

I appreciate that you're one of the 5% of the population that cares enough to get involved - but the better recourse is to use your cell phone to call the police, and never draw a firearm unless it is a life or death type of situation. You have to untrain yourself about being "macho", or not backing down.

Guns are (to me) a "last clear chance" of survival. They can also be used to stop forcible felonies when you're absolutely sure it's a forcible felony. All involve risk of prosecution when the cops arrive. Plus, it depends on the jurisdiction -- as different prosecutors view this stuff very differently.

The new self defense law helps -- but like I keep telling people who I represent -- are you going to take the chance at a trial where there's a mandatory minimum prison sentencem or will you take a plea if it's only probation? What the Legislature didn't do was make an exception that no mandatory sentences shall be imposed where a citizen has the legal right to use force, but exceeds the amount of force he or she could use. I think that anytime some use of force is legitimate, but the person oversteps that threshold, that having a mandatory prison sentence makes absolutely no sense, and the sentence should be left to a trained judge.

However, that's not the law. If you misjudge the situation, no matter how good your intentions are – and use a firearm – you face a mandatory prison sentence. On the other hand, if the victim in your example was on the ground, helpless, and getting kicked in the head -- at that point you may have to realize it's a life or death (or brain injury) situation -- and do what you have to do. Again, no guarantees on the repercussions, but I think any prosecution under those circumstances would fail, and that an arrest under that situation would be unlawful, and even constitute a false arrest, if made. Still, no guarantees -- thus I apply my Rule Number One: "Just because you're right, doesn't mean everyone else will think you're right."

This column is not rendered as legal advice. If you have a specific factual situation that affects you, an attorney skilled in this area should be consulted. Return to Legal Q&A list

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