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Old October 13, 2011, 10:49 PM   #1
hogdogs
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Florida Law. Toy Gun NOT A Weapon

http://www.weartv.com/newsroom/top_s...id_18291.shtml

WOW... So does this mean individuals who fire a real gun at the person with the toy gun are still able to feel "fear for life or of GBH" even though he is holding a non-weapon?

Or is your fear now not warranted because it is a toy not a weapon worthy of being called a weapon... so perp is "unarmed"?

Brent
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Old October 14, 2011, 01:03 AM   #2
DaleA
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Disclaimer: the video confused me at first and I admit I still might be confused.

I was over half way through the video before I realized what the point of it was:

The criminal cannot be charged with having a gun if the gun is a toy.

I don’t think they said anything about the reaction you should have if you are confronted by someone holding a toy gun. I don’t think you are responsible for determining if the gun is real or not.

I (of course) would believe if it looks like a gun you should be able to react as though it were a gun but the video did NOT talk about this part of the issue.

What I think it means is that after they catch a stick-up artist and find out he didn’t have a real gun and could not have shot anyone then they can’t charge him with armed robbery.

I’m not saying I agree with this ruling but I initially thought that the person being assaulted or police officers would be saddled with the responsibility of determining if the bad guy had a real gun or a toy gun and that is NOT what the ruling was talking about.
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Old October 14, 2011, 01:10 AM   #3
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Hogdogs, I should have added that I don't think the report addressed your concern at all.

You bring up a good point and I think they should have asked the question you did and got an answer to it - but they did not even bring your point up at all.
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Old October 14, 2011, 01:32 AM   #4
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in a robbery situation if the perp branished a pistol at me that looked like a real pistol I may shoot then ask questions. It is hard to think rationally in a ostensible life and death situation.
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Old October 14, 2011, 02:10 AM   #5
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If you shoot an attacker who has a realistic-looking toy gun in the reasonable fear that it is real and your life is in danger, then you have committed excusable (rather than justifiable) homicide. From a practical standpoint, the difference is moot, as you won't be held criminally liable.
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Old October 14, 2011, 09:27 AM   #6
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Quote:
The criminal cannot be charged with having a gun if the gun is a toy
You've gotta be kidding me...

Just when you think that Florida was starting to get things right...

How then does this play into an SD situation? I spray painted my old Delta Elite airsoft pistol flat black and it looks pretty darn real from a few feet away.

Are people now responsible for determining if a gun is real or not before they a) decide to comply or b) decide to defend themselves? How many tragic shootings have there been because the police responders thought that the guns were real?

Do they think that this will reduce the number of armed robberies by encouraging robbers to use toys to get a lighter sentence?
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Old October 14, 2011, 10:54 AM   #7
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I'm betting this will be appealed to the Fl. Supreme Court. The state isn't going to take this laying down.
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Old October 14, 2011, 10:54 AM   #8
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I guess I'll go against the mainstream here and say that I approve of this ruling. As has been noted in multiple posts above, for the honest citizen this will NOT affect anything with regard to using your firearm to defend against a robber. The way the law works in all states is that shooting someone is illegal as a basic rule. The laws then make an exception if you are "in reasonable fear" of death or serious injury" from an assailant. So if the gun being pointed at you looks real enough that you can't tell it's a toy, you are still justified in using lethal force in self defense.

But as to the robbers -- the legislatures and the courts use possession of a deadly weapon as an add-on charge. For example, it's illegal to rob a bank, even if all you do is walk in and hand a note to the teller. Do it with a gun, and they add on an additional charge. Why? Because with a gun there is the possibility the robber might shoot someone. Can he do that with a TOY gun? No.

So why should a kid with a toy be subjected to the same add-on charge as a career criminal who brandishes a .44 Magnum and is willing to use it? Personally, although ideally people wouldn't commit robberies, I would rather give a would-be robber some incentive to NOT point a real gun at me rather than treat the toy as if it was equally as dangerous as a real firearm.

Quote:
Originally Posted by Stressfire
Do they think that this will reduce the number of armed robberies by encouraging robbers to use toys to get a lighter sentence?
This was a judge making a ruling, not a legislative body changing a law. I don't think such thought entered into it. I suspect the judge probably did something novel like reading the law, which probably says something about using lethal weapons, and had a flash of insight that a TOY gun is not a lethal weapon, irrespective of what it LOOKS like. As a strict constructionist who opposes what I call "prosecutorial overreaching" I find it difficult to be upset when a judge actually goes by what a law says.

Of course, from this article it's difficult to know, because the article is nothing but a transcript of the news reporter, and she's an airhead who talks like a motormouth with marbles in the gears and can't make a coherent point to save her life.

Last edited by Aguila Blanca; October 14, 2011 at 11:03 AM.
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Old October 14, 2011, 12:43 PM   #9
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I think that what would be more illuminating would be a transcript of the judge's ruling.

If the law makes a clear definition of what constitutes a weapon in an armed robbery and a toy gun does not fit that definition, then the judge was right. If the legislature wants to broaden the definition, then it would have to amend the law.

If the judge was reading into the law, perhaps contracting the definition to exclude a toy gun, then I think that he's wrong. But this story doesn't have enough information.

EDIT: I just looked in the Florida Statutes. 790.01.13: “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

A firearm is defined just as you or I would define one. It's got to have the capability of discharging something by means of an explosive.

812.13.2 describes the three kinds of robbery in Florida. There's robbery with a firearm or other deadly weapon, robber with a weapon and robbery.

Unless there's some part of the Florida Statutes that I missed, a toy gun doesn't elevate the crime to armed robbery. I happen to think that it should, but based on what I found, I don't see how it can. Time to write your legislators, if you live in Florida!
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Old October 14, 2011, 12:50 PM   #10
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This has more implications for the LEO community than anyone else, if you shoot someone brandishing a realistic looking "toy" (is a BB or Airsoft gun defined as a toy under Florida law?) you just shot someone who was "unarmed". I agree that a toy gun is NOT a weapon, but in the case of someone trying to pass it off as a real weapon during a robbery or home invasion it should be treated as such for deadly force purposes IMO.
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Old October 14, 2011, 02:12 PM   #11
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Quote:
A firearm is defined just as you or I would define one. It's got to have the capability of discharging something by means of an explosive.

812.13.2 describes the three kinds of robbery in Florida. There's robbery with a firearm or other deadly weapon, robber with a weapon and robbery.

Unless there's some part of the Florida Statutes that I missed, a toy gun doesn't elevate the crime to armed robbery. I happen to think that it should, but based on what I found, I don't see how it can. Time to write your legislators, if you live in Florida!
+1.

I don't think this topic relates directly to a SD scenario. Establishing legal self-defense generally relies on the belief that the BG has a deadly weapon and intends to use it. Whether or not the BG really has a weapon is secondary. Plenty of people have acted in legal self-defense based on the reasonable belief that the BG was about to wield an unseen weapon. A believable replica of a weapon should fit into the same category.

The question here relates directly to the definition of armed robbery under FL law. IMHO this problem could easily be fixed by strategically inserting a phrase such as "...or a replica thereof..." into the definitions.
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Old October 14, 2011, 02:18 PM   #12
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Sounds like the laws need to be updated.

Here is the opening of the Virginia brandishing statute.

http://leg1.state.va.us/cgi-bin/legp...0+cod+18.2-282
Quote:
§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.
Virginia had a problem years ago when they first used a 'robo-deer' to try and catch poachers.
The law did not make it a crime to shoot a robo-deer even if the shooter believed it was a real deer.

The law was subsequently altered.

Another person accused oc cocaine possession claimed he had synthesized the drug, so it was not an "extract f the coca plant' the law defined as illegal.

That law was also changed, along with others when the 'designer drug' fad occurred (they would change a drug very slightly to avoid the definition in the law, while retaining the desired effects).
The did make a synthetic Fentanyl that proved useful in Parkinson research though. Some of their customers ended up with Parkinson symptoms though..

All the legislature needs to do is add language similar to "any object similar in appearance" to another statute declaring use of such an object to be punished as if it WAS the actual object.

Last edited by brickeyee; October 14, 2011 at 02:24 PM.
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Old October 14, 2011, 02:22 PM   #13
aarondhgraham
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Quote:
Plenty of people have acted in legal self-defense based on the reasonable belief that the BG was about to wield an unseen weapon. A believable replica of a weapon should fit into the same category.
And the police who have killed people who pointed a toy at them,,,
Got off without any prosecution whatsoever.

I know of two cases like this that happened when I lived in California,,,
One was a young boy who pointed a realistic squirt gun at a cop,,,
This was also the event that sparked the red tip on toy guns.

In 90's California there was a ruling that since it was presented as a gun,,,
Perps were charged with using a gun and suffered the "use a gun - go to jail" penalty.

I can see the intellectual parsing of the arguments,,,
But in reality if it's presented as a firearm to coerce a victim,,,
The perp should be subject to any laws about using a firearm in committing a crime.

But that's just my opinion,,,
I ain't no judge.

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Old October 14, 2011, 02:26 PM   #14
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Advice to potential criminals -

If you're going to threaten me or my family with a gun, you might as well make it a real gun because I will make every attempt to defend myself, and my gun will NOT be a toy.
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Old October 14, 2011, 03:37 PM   #15
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The question of what happens in a self-defense situation if the bad guy has a toy gun, but the victim does not realize that it is a toy has been raised.

It seems to me that, after reading the relevant Florida laws, the fact that the aggressor's "weapon" is a toy is immaterial. Florida's self defense laws, particularly 776.012 and 776.013, make no mention of whether or not the aggressor is armed or not. The deciding factor is whether or not the victim believes that he or she is facing imminent death or great bodily harm. If the victim does not know that the gun is a toy and the aggressor is presenting it as if it were real, well...the victim's going to believe that imminent death or great bodily harm is incoming!

The two statutes compose Florida's self defense and Castle Doctrine laws. The legislature wisely did not lay out specific scenarios of what would constitute a need for the use of deadly force. Instead, the chief requirement is that the victim either knows or believes that he or she is in danger.

They did, however, include a small laundry list of exceptions to the use of deadly force.
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Old October 15, 2011, 10:18 AM   #16
tape
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Quote:
Originally Posted by DaleA
The criminal cannot be charged with having a gun if the gun is a toy.
Quote:
Originally Posted by Stressfire
You've gotta be kidding me...
nope, he's not kidding but, he can be pronounced dead at the scene.
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Old October 15, 2011, 10:32 AM   #17
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It comes down to splitting hairs, but that's what we have judges and courts for.

In virtually every state (there may be exceptions) one can be charged and convicted of armed robbers if the victims believe you are armed. People have gone to prison for armed robbery when the only weapon they had was their finger stuck in their pocket in a menacing manner!

I think what this ruling is intended to do is to ensure that since it is a toy gun, you cannot be charged with posession of a firearm/weapon, in addition to other charges.

Two time loser hardcase holds up Granny's bakery with a toy gun (which no one there but the robber knows is a toy). Gets caught, and goes down for his third stike on armed robbery charges. I see that as justice.

Same case, loser cannot be charged with felon in posession of firearm, because it was a toy gun. I see that as justice, also.

But if a judge threw out the armed robbery charge (or overturned conviction) because he used a toy gun, that would NOT be justice.

Just my opinion, and worth what you paid for it.
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Old October 15, 2011, 11:09 AM   #18
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44 is pretty close...
What has changed is that in the past, if a person uses a toy gun in the commission of a crime he faced the possibility of "Armed Robbery" (as I feel it should be)... Now the the charge of "armed robbery" is off the table. So what will the charge be? Not "strong arm robbery" if he doesn't physically handle you? And can the wounded BG or family of dead BG now sue in civil court that "According to the law, my precious innocent angelic street thug OG wasn't even armed..."

Now I have a decent grasp of the sd laws of Fla... But long before the "castle doctrine" florida shop keeps have put plumbum inside robbers' torsos. But one protection he had was the presence of a toy gun was interrupted exactly the same as if it were a real firearm...

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Old October 15, 2011, 11:56 AM   #19
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A couple of years ago, the Kentucky Supreme Court overturned a fifty year old precedent and said that something which just appears as if it is a gun is not a deadly weapon (firearm) for purposes of the robbery statutes; i.e., a finger in the the pocket and a note to the bank teller, "I have a gun" doesn't make it a gun.

The impact so far has been minimal because they later said that a non-functioning firearm was still a firearm (deadly weapon) and because the wording of the armed robbery statute was broad enough to cover threats of use of deadly physical force.

Self-defense statutes will look to see if either a reasonable person thought they were in danger or if the person actually thought they were in danger but did not form that belief recklessly. Thus, it shouldn't matter in the vast majority of cases if the gun is real or not so long as it was obviously not a toy.
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Old October 15, 2011, 04:49 PM   #20
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I was under the impression that a finger in the pocket and "I have a gun" was enough to get you weapon charges in Florida. Of course, I learned that in college. Thanks again, internet.
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Old October 15, 2011, 04:58 PM   #21
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I think 44AMP nailed it. Ideally, this will only affect "enhanced" crimes.
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Old October 15, 2011, 05:36 PM   #22
hogdogs
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crazy, It is a very recent change to the law...
You were right a few weeks ago...

But there are still charges for selling fake street drugs to unsuspecting buyers

Brent
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Old October 17, 2011, 02:07 PM   #23
Hardcase
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Quote:
Originally Posted by 44 AMP
Two time loser hardcase holds up Granny's bakery
HEY! I'm just a one time loser!
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Old October 17, 2011, 03:59 PM   #24
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Quote:
But there are still charges for selling fake street drugs to unsuspecting buyers
It can come down to EXACTLY how a statute is worded if attempts to break it are also a violation.
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