FL Appeals Court Rules "Stand Your Ground" In Police Shooting

That's a rough spot for the police, but you don't get to disguise yourself as not-a-cop, make like you're kidnapping a young female, act surprised when you take incoming fire, and then wave your heretofore concealed badge after the fact.

At the moment of the first shot, the homeowner had no earthly way to know they were police, and every reason to believe they were criminals; that's absolutely an utter tactical fail by the police.

I think the confusion is over the popular title of the Florida law that allows a defendant to seek an immunity hearing. The appellate court more or less shut down the trial court after a remand to reconsider its original ruling that the defendant was not allowed to assert immunity from prosecution. The immunity hearing was part of a package of pro-defendant statutory changes that included clarifying Florida's court rulings on the duty to retreat which is generally called stand your ground.

For folks wondering, the appellate court issued a writ of prohibition (as regards to prosecution of the defendant), the Florida Bar has this to say,
"Writ of Prohibition
A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened. While a petition for writ of prohibition is not subject to the 30-day jurisdictional requirement of Rule 9.100(c), it must be filed in the appellate court having supervisory jurisdiction over the lower tribunal before the action it seeks to prevent has occurred. The content requirement for a petition for writ of prohibition, response, and reply is the same as that required in a certiorari proceeding. An important distinction between the procedure used in prohibition and certiorari proceedings is that an order to show cause issued by the appellate court upon receipt of a petition for prohibition prevents the lower tribunal from conducting further action until the appellate court discharges the writ." https://www.floridabar.org/the-flor...orneys-guide-to-floridas-extraordinary-writs/"

Andrew Branca (2013) explains the immunity hearing in Florida law, which due to the media's malpractice in reporting, has been misreported as Stand Your Ground (this change dealt with the statutory override of Florida's previous common law requirement to retreat in certain circumstances).

"In 2005 the Florida legislator enacted statute 776.032. “Immunity from criminal prosecution and civil action for justifiable use of force.” This immunity statute is often erroneously referred to as Florida’s Stand-Your-Ground (SYG) law, even by lawyers, judges, and law professors who ought to know better (MSM journalists I forgive for such errors, as their profession fairly demands ignorance). In fact, SYG is a different statute entirely, 776.013(3)."

776.032 Immunity statute is here-http://m.flsenate.gov/Statutes/776.032

The dispute dealing with the immunity statute (in the first round of appeals dealt with in the appellate court's Nov. 2019 decision) was that the defendant could not use the "safe harbor" provisions of an immunity hearing to bar prosecution. The trial court initially ruled against the defendant in the immunity motion because (a) the defendant shot at law enforcement officers, and (b) was knowingly assisting the criminal actions of his niece who engaged in prostitution. Both are exceptions to being allowed to use the immunity statute.

What complicates matters further is that the Florida legislature raised the state's evidentiary burden to clear and convincing in 2017 in these cases--the Florida Supreme Court ruled that this evidentiary standard should be applied retroactively to active cases (Love v. State, 286 So. 3d 177, 179 (Fla. 2019)). The 5th District Appellate Court initially held that the trial court should re-examine its ruling via remand (sent back to) by concentrating its ruling on the two provisions that barred immunity to the defendant if he (a) knowingly shot at identified law enforcement officers, (b) used his house to further illegal activities of his niece. The trial court responded by (a) ruling that the state failed its clear and convincing evidence requirement in demonstrating that the defendant knew they were law enforcement officers, but (b) ruling that the state met its burden in proving that the defendant knew about and furthered his niece's criminal actions by allowing her to live there and knowingly allowed his niece to practice her trade there.

This decision by the state appellate court, ruled that the state did not meet its burden on part b either under the clear and convincing standard. Thus, the appellate court issued a writ of prohibition of prosecution to further actions by the trial court and prosecutors in this case. Effectively, the appellate court reviewed the evidence and concluded that the state could not meet its burden of evidence and that the defendant was immune from further proceedings. Effectively, this case is dismissed because of it unless the writ is overturned by the Florida Supreme Court.

Your writing is a perfect example of clarity and economy in explaining the law in easily understandable terms. Thanks.

Amen...

The cited case is just one of the reasons why we did our best to make sure that folks serving warrants always had a uniformed officer with them at the time - and we also wanted a marked police car present as well... This was at a time (1980's) where police impersonators (actually armed robbers and worse..) were a serious problem down here in south Florida....

lemaymiami said:

Amen...

The cited case is just one of the reasons why we did our best to make sure that folks serving warrants always had a uniformed officer with them at the time - and we also wanted a marked police car present as well... This was at a time (1980's) where police impersonators (actually armed robbers and worse..) were a serious problem down here in south Florida....

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This case is a perfect example of where legal issues are compounded by strategy and tactics. One could just as well address the strategies and tactics portion of target identification in a S&T thread. This being legal, the major issue was that the state failed to reach the clear and convincing evidentiary standard--in part, because the police never sought a warrant for the homeowner/shooter for facilitating his niece's career in prostitution. The appellate court in this case reasoned that if the police did not seek a warrant for the homeowner under the probable cause std., then obviously, they would fail to meet the old or the new standard of evidence for removing immunity from the shooter.

In my classes, I pretty much hammer the fact that if the police want to make their actions stick--it is almost always better to seek a warrant if given time to do this. In the case at hand, the police had probable cause to get a warrant on the niece but either neglected to build a case against the resident shooter or lacked the evidence to do so. In a lot of these cases, one can never know exactly what the police had information about that did not meet evidentiary standards for warrants. It cost the state in this case.

Your advice to “always seek a warrant” is usually strictly followed by homicide units if they’re first rate...

Day to day, of course, it’s not followed at lower levels from what I remember- but I’ve been out of that world for many years now.

lemaymiami said:

Your advice to “always seek a warrant” is usually strictly followed by homicide units if they’re first rate...

Day to day, of course, it’s not followed at lower levels from what I remember- but I’ve been out of that world for many years now.

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What you say makes sense in that the stakes are higher in a homicide investigation and that crucial evidence might be thrown out.

My point was, if you are planning more or less to show up in force at a house to enforce a warrant for the niece, it would make sense to also seek another arrest/search warrant for the homeowner if you thought they were involved in the act. Apparently the 5th Dist. Ct. of Appeals in Florida thought so too. My guess is that there is more to the story here as usual than in the official court record.

Spats McGee said:

From what I have read, it sounds like the niece didn't show up at a prearranged location for a prostitution sting (against her), so the police went to her house. From what I know of police (& I consider myself moderately well-versed in police procedures and policies), that's absolutely bizarre. I've never heard of such a thing.

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I did not find that in the appellate decisions regarding the niece failing to meet at a different place thus causing the police to attempt the arrest at the house. But as the italicized passages indicate below, it is unclear--Footnote 5 from the previous decision seems to imply a pre-planned arrest mission but it could very well be a fallback from a previous failed rendezvous with the niece and the undercover cop.

This is what I found on page 6 of the original and quoted verbatim in the later appellate decision posted above on page 4, and is the following passage:

"They arrived at the home in unmarked vehicles and parked on the street away from the home. The deputy who first approached the home posed as Ellis’s customer and was in plain clothes. He had made arrangements with Ellis earlier that day to meet and
engage in a sexual act with her for money. This deputy was the individual whom Ellis first greeted at the door as her anticipated customer and who then entered the home by grabbing Ellis by the arm inside the threshold and pulling her out of the dwelling." This initial story on the shootout has a bit more on details, https://www.orlandosentinel.com/new...shooting-suspect-arrested-20150826-story.html and this, https://www.floridatoday.com/story/...ts-prostitution-claims-self-defense/32399971/. Without going into the non-legal stories, there are some definite differences in the initial stories versus later stories. Under some accounts, the officers were without a warrant at the time of the shootout. The appellate decisions leave it unclear whether a warrant existed before or was made out after the fact. The undercover officer and the niece exchanged texts about her willingness to engage in sex for money to set up the assignation if you believe the news stories above. The stories made out the state's allegation that the defendant was more or less the protector and facilitator of her actions.

Footnote 5 in the original appellate decision, Derossett v. State, 44 Fla. L. Weekly D2713, 2716, 6 (Fla. 5th DCA Nov. 7, 2019), found at https://law.justia.com/cases/florida/fifth-district-court-of-appeal/2019/5d19-0802.html had this to say,

"The deputies would later testify that it was extremely rare for this type of undercover operation to be conducted at a home due to concerns for officer safety. However, because Ellis had been arrested for prostitution approximately one month earlier without incident, the deputy in charge of the operation was not as concerned that the situation would turn violent."

I had not read the original appellate decision as I assumed a fairly limited order to remand. Instead, reading the original appellate decision, one can see where the media could get confused. The court begins its opinion discussing the Castle Doctrine, then ends its introduction with the 2005 Florida enactment of the 'Stand Your Ground' law. Unless one knew of previous Florida Supreme Court decisions that muddled whether one had the duty to retreat in their own home, one would conclude that this was a Stand Your Ground decision as it occurred in the yard outside the home as a continuation of the action occurring in mere seconds which began with the deputies pulling the niece outside to arrest her. I could not find in either appellate decision, any discussion of Florida's curtilege protections (the immediate area around the home) under the Castle Doctrine. The statute, FL 776.013, at issue, appears to address home protection which would imply that this is actually a Castle Doctrine case. 776.013 1(a) actually has language dealing with the attempted or successful removal of a person from a home against their will.

This is for folks that may not know about immunity hearings on self defense.

Pretrial Immunity Hearings on self defense claims
Alabama, Colorado, Florida, Georgia, Kansas, Kentucky, Oklahoma, and South Carolina allow defendants claiming self defense to have a pre-trial hearing before a judge that can effectively end the case without a trial (and expense to the defendant) if the defendant's self defense claims meet the statutory requirements. A defendant can go directly to trial as Zimmerman did by waiving his right to this hearing. https://abcnews.go.com/US/george-zimmerman-waives-stand-ground-hearing-heads-trial/story?id=19074241 This was based on the defense's calculation that the testimony at the immunity hearing and a judge issuing a ruling that Zimmerman was not immune to criminal prosecution might adversely affect Zimmerman at trial. At that time, the Florida law had the defendant bear the burden of proving their actions justified. https://www.nytimes.com/2013/05/01/us/george-zimmerman-waives-right-to-pretrial-hearing.html

North Carolina has an immunity statute; but in that state, it is the discretion of the trial judge to allow a pre-trial self defense hearing or not. https://nccriminallaw.sog.unc.edu/self-defense-provides-immunity-criminal-liability/ Usually, these immunity hearings also include immunity from civil suits as well for the defendant. Note that this list is based on some internet research and may not cover all states that have such. These are states that have been repeatedly mentioned in legal cases, law review articles, etc. as having immunity statutes. For example, Benjamin M. Boylston, Immune Disorder: Uncertainty Regarding the Application of “Stand Your Ground” Laws, 20 Barry Law Review 25, 34 (Fall 2014).

States vary on whether the burden is on the defendant or the state in these hearings with Florida requiring the State to disprove immunity by clear and convincing evidence which is the highest burden of proof in the judicial system apart from beyond a reasonable doubt. Others, such as Georgia, require the defendant to prove their self defense claim as "justified" by preponderance of the evidence (more likely than not). Some allow the state to appeal the trial court's immunity hearing decision (Colorado for example).

In fact, this appellate decision in DeRossett I and its subsequent appellate decision (DeRossett II) review of a trial court immunity hearing which was part of the 2005 Florida revision of self defense laws. Florida laws require defendants to make a prima facie ("sufficient to establish a fact or raise a presumption unless disproved or rebutted." https://www.law.cornell.edu/wex/prima_facie) claim of self defense before allowing an immunity hearing. The appellate court found that despite the trial court's multi-day immunity hearing which produced about 1500 pages of transcript of witness testimony, the trial court failed to make a ruling on the defendant's prima facie claim and proceeded to deny immunity based on the exceptions in the immunity hearing statute. Furthermore, the trial court put the burden on the defendant to prove via preponderance of the evidence that he was justified in his actions when the std. in Florida at the time was that the State had the burden of proof. In other words, the trial court found it unnecessary to rule on the defendant's immunity prima facie claim based on self defense because it concluded that he did not qualify for immunity based on two factors--firing at law enforcement officers and facilitating his niece's prostitution and put the burden on the defendant to prove that he did not know that they were law enforcement officers and that he was not facilitating his niece's prostitution. In DeRossett I, the appellate court ruled that the defendant made a prima facie self defense case in the hearing and on that basis, they decided to remand the case to the trial court judge to make the decision regarding the exceptions in the immunity statute as I discuss in my previous post above.

In between the two appellate decision, the Florida Supreme Court decided a case regarding whether a change in the evidentiary standard of self defense by the Florida Legislature in 2017 applied retroactively or prospectively. The Florida Supreme Court decided it applied retroactively so that the defendant in this case from 2015 could benefit from the new higher evidence requirement for the State.

So, DeRossett II dealt with the trial court's ruling that the defendant's immunity from prosecution was eliminated by his house and his actions being used to facilitate the niece's prostitution. In DeRossett II, the appellate court overturned this decision on immunity because it ruled as a matter of law, the state failed to provide enough evidence to reach the clear and convincing standard that DeRossett knowingly abetted his niece's career in prostitution. In part, the failure of the state to seek an arrest warrant for DeRossett or even a search warrant was treated by the appellate court as the State failing to even meet the preponderance of the evidence standard, let alone the higher clear and convincing standard. Thus, the appellate court issued an order barring the trial court (and State) from pursuing any further prosecution via a writ of prohibition to the trial court. If the State was smart, they would not appeal this order.

For those that might be interested, DeRossett spent five years in jail while he was waiting for the trial--he was being held without bail until March, shortly before the appellate court rendered its second decision https://www.floridatoday.com/story/...ase-shows-changes-law-must-undone/3005007001/. To make this clear, the author of the floridatoday opinion is the original prosecutor in the case.

From the reports, it is unclear what the delay in the case between the initial hearing and the appellate review of the case. The original Stand Your Ground immunity hearing occurred on Sept. 2018, nearly three years after the initial event. It took about one year for the appellate court to rule. He was being charged with three counts of attempted 1st degree murder of law enforcement officials which in Florida warrant a life sentence without parole http://www.leg.state.fl.us/Statutes...ute&URL=0700-0799/0782/Sections/0782.065.html

Probably the best coverage of the appellate decision in the media is here. https://www.clickorlando.com/news/l...rida-man-stood-his-ground-in-deputy-shooting/

Overall legal lessons from this case:
An important takeaway is that the defendant in this case was very very lucky and probably would have been convicted in a number of states due to statutory and common law differences among states. He still spent nearly five years in jail waiting for his vindication in court.

Legally, I argue, he made two critical errors--he fired a warning shot which led to a direct exchange of gunfire with law enforcement officers and he could not positively identify his targets. He initiated the shooting which provoked retaliatory shooting back at him. The first instance, was used by the trial court judge apparently to rule that the defendant had no imminent fear of death or serious injury along with the three law enforcement officials spreading out before the shootout. Therefore, the trial judge apparently found there was no prima facie case for self defense (the judge somehow neglected to formally rule on this as the appellate court found). In addition, as it appears from media and appellate court decisions but without the trial court transcript, it appears that he was housing his niece who was engaged in criminal activity (prostitution) and perhaps drug abuse. It is unclear about the extent of the knowledge but he apparently kept a drug abusing niece in his house and knew she was committing acts of prostitution.

It is an old standard maxim in courts that one must come to court with clean hands. Tolerating illegal activity in your own home risks both criminal and civil liability and S&T wise, produces undue interest of both criminals and law enforcement which is doubly bad from a legal and S&T standpoint. His neighbor, which ended up taking the defendant down in his yard after the shootout ended was a high ranking official in the Brevard County Sheriff's office which could very well have noticed the apparent illegal activities occurring in his neighborhood.

This is the Judge Lemondis trial court ruling on immunity. Note that she used two facts to indicate that the defendant was not entitled to immunity--the warning shot and the defendant's testimony that the deputies scattered after the shooting. The warning shot meant that the defendant could not claim that he or his niece were in "imminent" danger coupled with the deputies retreating without his niece. In the judge's ruling, her take was that DeRossett fired the first shot unnecessarily and escalated the conflict which led to police responding with gunfire.

In many states, DeRossett would be spending a lengthy jail sentence for his conduct. He was very very lucky to not be spending most of his remaining life behind bars.

Kleanbore said:

A warning shot, yet a claim of imminent danger?

A legal defense of self defense after shooting at retreating people?

Gosh!

Boom-boom, how can the appellate court ruling be reconciled with those points?

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The evidentiary standard and the prima facie issue were the paramount reasons that the appellate court issued the writ of prohibition.

Florida's legislature has more or less driven common law out from self defense laws through statutory changes and provisions. In Florida, the STATE has the burden of disproving the defendant's claim of immunity by a clear and convincing evidence standard. That is the highest standard in civil litigation (used in things like First Amendment libel claims and the like). Due to the police apparent failure to get a warrant for the niece and running a snatch and grab off the front porch using an undercover officer, the question to the appellate court was apparently what was the subjective belief at the time of the defendant DeRossett about what was happening.

Due to the voluminous testimonial and evidence record of the immunity hearing, it allowed the appellate court to essentially review de novo (as if the trial court rulings did not exist) on whether the defendant made a prima facie case of self defense. The appellate court literally used the legal dictionary definition of prima facie, "sufficient to establish a fact or raise a presumption unless disproved or rebutted." Thus, it was dark, his niece was seized by a man at the door and dragged out, the man was not wearing identifying uniform (testimonial differences in whether he claimed law enforcement status), and the encounter occurred at the door of the residence and the covered porch immediately adjacent. The first appellate decision started with the explanation of old Florida case law regarding the Castle Doctrine and then used that to explain the law in place FL Statute 776.013 regarding defense of the home.

The legislature wrote this codification of the Castle Doctrine due to a pair of Florida Supreme Court decisions that effectively muddled whether one had the duty to retreat in their own home before shooting through a 1982 decision, State v. Bobbitt, 415 So. 2d 724 (1982). A number of court decisions then muddled when and where a duty to retreat existed. So, in 2005, the State legislature fundamentally eliminated the duty to retreat including in the home by adopting the "true man" doctrine in total. Before that time, one did not have to retreat only when the assault was sudden and unpredicted (the bolt from the blue). Due to the conflicting court cases on the Castle Doctrine, the Florida legislature got rid of the the duty to retreat in the home (Castle Doctrine) and in public (commonly called Stand Your Ground). This has led to media confusing the castle doctrine with stand your ground across the country. Subsequent tweaks to the law occurred in 2017 which changed the burden of proof to the state and required the state to disprove immunity by clear and convincing evidence at immunity hearings, in part, because of the Zimmerman case I suspect.

Thus, once the district court of appeals decided that the defendant made a prima facie case, then the question on immunity stemmed to whether a) the defendant knew he was shooting at police officers (and eventually concluded that he did not which the state did not disprove) and b) whether he was running a house of ill repute (the state failed to meet their burden to show by clear and convincing evidence that he was doing so). Because the state failed to prove that the defendant knew he was shooting at police officers and whether he was aiding and abetting his niece's career in prostitution, the defendant became immune from prosecution through a writ of prohibition.

This probably would not happen in most, if not all, other states. Even states with immunity hearings, normally require a preponderance of the evidence (states vary between putting the burden on the defendant or the state). Only Florida, it seems, has the clear and convincing burden of proof laid on the state for disproving self defense in a pre-trial immunity hearing.

If you root around the media stories, there is substantial problems with the prosecution, police officers involved, and judge in the case and some unproven allegations against the prostitute and her uncle who was the defendant in the case but none of this is relevant in the legal sense.

Nevertheless, the guy has spent nearly five years in jail for this waiting his judicial vindication so you can't really call him a winner either except he probably avoided a life sentence in the case had he lost his appeal. If he had not have shot in the case, although hindsight is always 20/20, there would have been no need for immunity in the case and his lengthy stay in jail.

We might find more if DeRossett pursues a lawsuit against the police but maybe not.

Kleanbore said:

A warning shot, yet a claim of imminent danger?

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LOL, that is the reason for firing the warning shot.

Kleanbore said:

When a shooter fires a warning sot, it is usually successfully argues that he dis not to believe the danger to be imminent, or he would have fired at the apparent assailant instead,

that's one of the important reasons that warning shots are discouraged.

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Nobody says the shot has to hit anything if the person feels if they are in imminent danger. What they call it doesn't really matter. Either they had the right to use lethal force or they didn't under the law.

Double Naught Spy said:

LOL, that is the reason for firing the warning shot.

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In most states if not all outside of Florida, a warning shot indicates that you did not have an imminent fear of death or serious injury. The defendant was very lucky to avoid a life sentence here. In essence, the trial court felt that the defendant's actions provoked the ensuing firefight.

The sequence went--Niece goes to door, undercover officer pulls her out of the house onto the covered porch, other two responders --one undercover, the other wearing a jacket which had sheriff's dept. on the back, come to help, the defendant goes to the doorway with a gun--officers shout gun, gun, gun, and run away shoving the niece back at the defendant.

Then as the officers are scattering across the guys lawn--defendant shoots a warning shot, then officers and defendant engage in a 40 shot or so gunbattle. One officer is seriously wounded, the defendant and his niece suffer minor gunshot injuries.

The first paragraph of facts is what the court decided was part A) where lethal force might have been used in self defense. The second paragraph of facts after the police fled and the niece was shoved back at the defender was regarded by the court as a new encounter where the defendant fired a shot unnecessarily because his niece was no longer at risk of perceived kidnapping and the police were retreating which makes him the aggressor in the fight now.

The appellate court saw this a bit differently as one continuous conflict rather than two which shows the importance of time and recognizing engagements are over by making it clear that the conflict is over.

Double Naught Spy said:

Nobody says the shot has to hit anything if the person feels if they are in imminent danger. What they call it doesn't really matter. Either they had the right to use lethal force or they didn't under the law.

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It is really not that binary--it is whether or not the use of lethal force is "reasonable" under the circumstances. In some states, the std. is objective regarding the perceptions of whether or not your use of lethal force is "reasonable". The general presumption in the law is that is unreasonable to use lethal force but that presumption is rebuttable by a defense with evidence that it was necessary. Note, that the defendant then would have to show why firing a warning shot by wasting a bullet in the air was a "reasonable" response to an imminent threat. I doubt the defense lawyer could get one reputable self defense trainer to agree with that on the stand. In most states, case law will frown on discharges involving warning shots--after all, bullets come down somewhere and people have been killed by random shots fired in the air. Thus, the presumption is that firing in the air is an "unreasonable" action as it would tend to indicate that one did not fear "imminent" harm.

In addition, the defendant's actions in firing a warning shot would now produce the reasonable fear in the other police officers that the guy was shooting at them and they had the right to use deadly force to end the threat.

There are always exceptions to the rules, but the guy probably would not have spent five years in jail waiting for the judicial system to free him if he had not fired that warning shot.

Kleanbore said:

The attendant civil and criminal liability, potential criminal charges relative to a reckless shooting in town not justified by necessity, and the likely impact on a legal defense of self defense, make warning shots a terrible idea,

We have discussed such cases here.

One other thing: it is not uncommon for shots fired into the ground to come back up and endanger others. I would not have realized that, had a bullet that went into the ground in front ot the backstop into emerged an endangered tractor driver on the other side of the river.

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I totally agree with you Kleanbore.

I was trying, and apparently failing, to communicate that dangerous and foolish actions with firearms such as shooting in the air (or ground) are not by definition "reasonable" but in the case at hand, the trial court used it simply to argue that it undercut any claim of self defense because firing in the air instead of a body meant that the shooter did not fear imminent harm from the unidentified individuals.

Firing into the ground is also not wise apart from indicating that that the shooter did not fear imminent harm. Shallow angle shots often result in ricochets that can be just as deadly to others with little predictability where it might end up.

There is also a doctrine of transference to worry about in a lot of states. That is if you aim at the sky or ground to warn the bad guy and a good guy gets hit and killed elsewhere. A person would not be able to argue they did not intend to hurt the good guy by their unwise actions.

boom boom said:

It is really not that binary--it is whether or not the use of lethal force is "reasonable" under the circumstances. In some states, the std. is objective regarding the perceptions of whether or not your use of lethal force is "reasonable". The general presumption in the law is that is unreasonable to use lethal force but that presumption is rebuttable by a defense with evidence that it was necessary. Note, that the defendant then would have to show why firing a warning shot by wasting a bullet in the air was a "reasonable" response to an imminent threat. I doubt the defense lawyer could get one reputable self defense trainer to agree with that on the stand. In most states, case law will frown on discharges involving warning shots--after all, bullets come down somewhere and people have been killed by random shots fired in the air. Thus, the presumption is that firing in the air is an "unreasonable" action as it would tend to indicate that one did not fear "imminent" harm.

In addition, the defendant's actions in firing a warning shot would now produce the reasonable fear in the other police officers that the guy was shooting at them and they had the right to use deadly force to end the threat.

There are always exceptions to the rules, but the guy probably would not have spent five years in jail waiting for the judicial system to free him if he had not fired that warning shot.

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This is interesting. The claim is that in most states that warning shots are not legal by case law. I have no doubt there are cases where warning shots were fired for which there is no justification for pulling the trigger, but that isn't really what is being claimed, right? I would like to see where it is factually true that in at least 26 states that case law makes warning shots illegal. Even then, whether it is most or not isn't really relevant. All that is relevant is for the state in question.

So there are "exceptions to the rule." Assuming there is a 'rule," that would be like saying that there are circumstances where warning shots are legal, right? And that is what is being talked about. You could argue that lethal force is illegal, by statute and case law, but that there are exceptions. That alone does not make lethal force wrong. In fact, the very 'exceptions' are highly significant to self defense.

I am 100% certain that the defendant would in no way have to justify bullet wastage, however. Waste has no bearing on the issue.

Producing a fear in police during an act of self defense is unfortunate, but not necessarily illegal. Circumstances may be unfortunate, but not illegal.

Thank GOD testimony by self defense trainers are not the standard by which we judge the reasonableness of legal issues. Of course, by the statement above is the the implication is that if a self defense trainer made such a claim, that trainer would not be "reputable," LOL. There are a lot of self defense trainers and I have had training from a bunch of them who were quite reputable, but interestingly, not a single one of them is a legal expert. There are a few who are legal experts, but not many.

That the defendant might not have spent 5 years in jail had he not fired a warning shot probably true. Then again, there are a bunch of people who have spent time in jail where they acted in manners that only later took years to determine the validity of their acts, but while that is a downside to their actions, it has no bearing on legality, which is the issue at hand.

Note that I am not in any way making an argument that warning shots are a good idea. I would even state that I believe that in most circumstances where I have read of warning shots being used, that they appeared to be used in non-legal manners. I would argue that much of the time they are not tactically sound and that they are wasteful. They may certainly endanger the wrong people or property. I even agree that due to the complexity of situations, they may encumber the shooter with legal hassles (as with any time lethal force is used, you may face legal hassles).

However, going back to actual legality (not whether or not they are a good idea or how people feel about them), would it not be interesting to list those states and relevant case laws regarding the use of warning shots? Of course, case laws tend to be situationally dependent. When circumstances differ, case law may no longer apply which is why invocation of case law often turns out to be very interpretive.