Floridas "stand your ground law"

[brickeyee]

The map shown in Post 84 is not really accurate, as it does not reflect case law.

A common failing.

Statute law is NOT the only law you must at least be aware of.

Virginia has NO statute law dealing with the use of lethal force.

NONE.

It is entirely case law, and at least as good (and possibly better) than many of the SYG laws that have been passed.

It has a long history in the common law.

We do not have to retreat from any lace we are legally allowed to be, and can answer force with force.

We have justifiable and excusable classes for killing in self defense.

One is if you had NO part in provoking the incident, the other if you had a part initially (possibly even exchanging words) but then indicated your clear intent to end the incident, and the other person continued to attack.

We use 'reasonable man' as the judgment standard in many cases.

If you claim self defense, the burden of proof is shifted so that you MUST justify your actions (you have already admitted to a homicide, and now must point to your actions as reasonable and within the law).

It would appear their are some political manipulations going on with Florida's SYG law (and DAs are rarely the cream of the attorney crop).

The law did not eliminate preceding case law, but many DAs appear to be alluding that it has.

Simply repealing the 'retreat law' might have been more effective with less ability to manipulate.
This fear of manipulation is why the Virginia general Assembly has turned aside attempts to pass a Castle Law statute in Virginia.
Ours common law is very solid.
The only thing missing is some type of civil immunity (though there are hints of it already being present in the common law, and there have not been a raft of civil cases anyway).

 

[JRH6856]

The SYG law has nothing to do with justifying a CONFRONTATION. There is no ambiguity in the law in that area. The law only applies after a person has had a credible threat made against them of grave bodily harm or death. The law offers no justification for confrontation. We aren't, or shouldn't be, talking about confronting anyone. The law is only applicable to DEFENDING oneself!

Agreed, that is how SYG should be understood and applied. The question is whether or not it actually is understood and applied in that manner.

For those that do not have a clear understanding of when and how the law applies or who cannot form one, a gray area exists and the law creates confusion rather than providing guidance. For those so afflicted, I offer the "would I do this if I didn't have a gun" rule.

 

[Orkan]

Rewind the clock a few hundred years, and people were routinely called out to the yard to settle a matter of honor with a set of pistols. As a result, people were generally quite cordial to one another.

Perhaps the threat of armed reprisal will get people to stop acting like retarded animals, jumping around and chest bumping.

Bottom line: If I feel my life is in danger, I don't have a care in the world what the law says. I'm going to pull my carry and start putting holes in the person that is making me afraid for my life.

That's the fact threads like this ignore. When the situation actually happens, you will have decided whether to use deadly force or not. I know ahead of time that if my life, or the life of someone around me is in danger as a result of an attacker, I will kill the attacker. At least I'll be able to look myself in the mirror, and be able to look in the eyes of the person/people I saved. They want to prosecute me for it? Fine. It's a moot point. Some law written somewhere doesn't matter to me when I'm in the process of trying to stay alive. AFTERWARD it will be twisted and interpreted by a gaggle of legal idiots and the absolutely appallingly stupid American justice system. Should I shoot someone, there is virtually nothing standing in the way of that happening in some capacity. Yet when compared to staying alive, none of it is even a consideration.

 

[Sam1911]

Rewind the clock a few hundred years, and people were routinely called out to the yard to settle a matter of honor with a set of pistols. As a result, people were generally quite cordial to one another.

Perhaps the threat of armed reprisal will get people to stop acting like retarded animals, jumping around and chest bumping.

Ironic. In Rory Miller's Meditations on Violence he actually defines both the "chest bumping" animal behavior and the socially countenanced antique construct of dueling as all facets of "The Monkey Dance" -- which is just primitive social dominance behavior having very little to do with any real desire to cause death or serious injury.

And, thus, neither having very valid ties to true live-or-die, self-defense violent response, as almost all such situations can be solved by situational awareness and diffusion of conflict -- recognize what's going on and don't do the dance. (This is, of course, much more dangerous in group dynamic situations.)

This has nothing at all to do with response to predatory behavior, wherein social dominance is not part of the goal, but violence is either a means to take resources, or the process of violence is the goal itself.

Rewind the clock a few hundred years, and people were routinely called out to the yard to settle a matter of honor with a set of pistols. As a result, people were generally quite cordial to one another.

Ahh, the rosy days of yesteryear, when people were armed and gentlemanly, violence was rare, life was free and fair and simple. It NEVER happened. Life is far safer, longer, and more secure for most people now than it has been at any point in history. Risk of armed response never did and never will make society more peaceable on the whole.

 

[MagnumDweeb]

So we get the occasional bad shoot and all of a sudden we have toss out the baby with the bath water...hmm.

I live in Seminole County not far off from Sanford and I had a D.A. tell me that Seminole County is pretty laid back when it comes to the courts (we had a misunderstanding about a continuance being granted outside of a formal court hearing, because other counties I've dealt with won't let this happen). He also mentioned the shooting. We didn't get into it as I simply said the forensics will tell us what happened.

I've dealt with the Seminole County jury pool, and it's not full of the full folks protesting and making nonsense out of this before the facts have been determined. It'll largely be white middle class people. A fair number of whom own guns or have friends who have guns.

So in the eyes of the D.A., the case will be hard to get a conviction on in the first place because of the whole "beyond a reasonable doubt" bit. Plus any defense attorney worth his salt will seize on the prima facie establishment of self defense as I have before.

A decent piece of case law before the courts is this: "In order to establish a prima facie case of self-defense, the defendant does not have to testify at trial; his or her statement to the police admitted into evidence may be sufficient." Sipple v. State. I won't get into the exact citation, and don't use this as legal advice, it's not intended to be legal advice. Just a simple academic discussion.

So in the eyes of the prosecutor, when the defendant tells the police he acted in self-defense and no other witnesses can be presented to counter this point, and no other forensic evidence can be presented to counter a claim of self-defense. The defendant doesn't have to take the stand for a decent defense attorney worth his salt to move for judgment of acquittal and even if the defendant gets convicted at trial, his chances of being freed and declared not guilty on appeal are quite great, when you have the before mentioned circumstances.

So yes there is public outrage, but trials cost money, and when the odds aren't good on a win, why waste the money. Again, not legal advice, just simple academic discussion.

 

[rajb123]

Are the details of how the Florida SYG law works discussed in required learning classes that concealed carry permit holders must take and understand?

...just wondering.

 

[Kleanbore]

Posted by Orkan: Perhaps the threat of armed reprisal will get people to stop acting like retarded animals, jumping around and chest bumping.

The "threat of armed reprisal" is just one of the things that learned men have tried to control through the enactment of laws that go back some four thousand plus years.

Bottom line: If I feel my life is in danger, I don't have a care in the world what the law says. I'm going to pull my carry and start putting holes in the person that is making me afraid for my life.

I know ahead of time that if my life, or the life of someone around me is in danger as a result of an attacker, I will kill the attacker.

They want to prosecute me for it? Fine. It's a moot point. Some law written somewhere doesn't matter to me when I'm in the process of trying to stay alive.

Talk about "chest bumping"!

A few key points:

• "Feelng that one's life is in danger" is not sufficient to lawfully justify the use of deadly force. There's the little matter of a basis for reasonable belief that such force is immediately necessary to defend against an imminent threat of death or serious bodily harm, as a last resort.
• While deadly force may reuslt in the death of someone, killing is not a lawful goal, since what is necessary is to protect oneself by eliminating the efficacy of the threat.
• Statements such as those in a public forum are permanent and discoverable. They may be used as evidence to indicate sate of mind and a predisposion toward violent criminal action, and can adversely affect what may otherwise have been a successful defense of justification.

For more on the first two points, see this.

On the last one, see this.

 

[armysniper]

I strongly support the "Stand your ground law."

Unfortunately it seems that the real issue here is that the police agency is accused of not properly investigating this case.

A proper investigation would reveal if someone acted within the law.

Just like most laws, there is nothing wrong with the law. There is just something wrong with people.

The Martin/Zimmerman case is most unfortunate. I feel for the young man and his family. It is a horrible tragedy that no parent should have to endure.

I hope in the end this is properly investigagted and if Zimmerman is found to have committed a racial murder, he is prosecuted and punished within the full extent of the law.

 

[ns66]

The unfortunate argument brought to bear against the idea by the prosecutors and LE seems to be that if there is only one combatant left alive, and no witnesses to the contrary, the 'winner' always claims to have done nothing to instigate the confrontation and to have merely been attacked while going about his lawful business -- so they cannot bring a case against him. His word must be accepted and the killing declared self-defense.

the LE's duty is to find the truth, in any incidence and certainly when someone died, they fail their job if close the case solely based on claims of sd by the shooter

 

[Cosmoline]

I've been looking into this issue lately and I think there are some serious problems with Florida's law that need to be addressed. The stand your ground statute reads:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

http://www.leg.state.fl.us/statutes...ng=&URL=0700-0799/0776/Sections/0776.013.html

If the shooter can establish that he was facing great bodily harm and was committing no actual crime, then the burden under Florida's law shifts back onto the prosecution to DISPROVE the self defense claim beyond a reasonable doubt.

When the defense of self-defense is asserted, a defendant has the burden of [**6] producing enough evidence to establish a prima facie case demonstrating the justifiable use of force. Fowler v. State, 921 So. 2d 708, 711 (Fla. 2d DCA 2006); see Murray v. State, 937 So. 2d 277, 282 (Fla. 4th DCA 2006) (holding that HN4law does not require defendant to prove self-defense to any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant's only burden is to offer facts from which his resort to force could have been reasonable). Once a defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Fowler, 921 So. 2d at 711. The burden of proving guilt beyond a reasonable doubt, including the burden of proving that a defendant did not act in self-defense, never shifts from the State. Id. (citing Brown v. State, 454 So. 2d 596, 598 (Fla. 5th DCA 1984)).

By coincidence, several days prior to Fields's trial, the Florida Supreme Court amended Standard Jury Instruction (Criminal) 3.6(g), the self-defense instruction, to clarify that HN5a defendant is not required to prove self-defense "beyond a reasonable doubt." In re Standard Jury Instructions in Criminal Cases (No. 2006-3), 947 So. 2d 1159 (Fla. 2007) [**7] .

Fields v. State, 988 So. 2d 1185, 1188 (Fla. Dist. Ct. App. 5th Dist. 2008)

The upshot is that where the shooter can offer some physical evidence to support getting beat up, and establish that even if he was being obnoxious and idiotic he was not breaking the law, there is an almost impossible burden on the prosecution to not only build the main case beyond a reasonable doubt, but refute the claim of self defense beyond a reasonable doubt. Where there is one witness-the shooter--and the physical evidence shows he did get punched, what are you going to bring in to prove murder?

I think the statute needs to be tweaked to avoid exculpating people who "pick fights" in some manner without actually breaking the law. Because as it stands now a clever person could goad a target until getting punched a few times, then murder him with total impunity.

I don't think we would have to toss babies out with bathwater to do this. A simple subsection making it clear that if the shooter intentionally created the situation giving rise to the initial assault, he will not be justified. Or perhaps making that situation a new category of manslaughter.

There is also an option of returning to a very narrow duty to retreat, which some states have. This would require retreat only if it can be done in PERFECT safety. That precludes use of self defense justifications by someone who instigated the situation and could have left without danger after seeing the other party. But it would not bar self defense where someone could have theoretically retreated by dodging bullets, jumping through plate glass, etc.

(please note I'm not making any direct reference to the case which shall not be named here, since we really do not know what happened there and it doesn't matter anyway.)

 

[Orkan]

Feelng that one's life is in danger" is not sufficient to lawfully justify the use of deadly force.

If someone intends to maim or kill me, I could care less what is lawful. Maybe that's not very "high road" of me, but its the truth.

The thought that someone being beaten NEARLY to death with a club because he didn't want to break the law is morally superior to a man that shoots the club-wielding fool before he ever strikes a blow is an ideal I hope stays completely foreign to me.

If I feel my life is in danger, I will defend my life by whatever means available to me. This includes running away. If I feel someone else's life is in danger and I can save them by shooting someone that's endangering them... I will.

People who would not act with lethal force to defend someone else's life are the same people that drive by accidents when they are the first on the scene to ensure they don't get sued afterward.

Doing what is morally right often has very little to do with obeying the law. Just because it is law, does not automatically mean it is right. You don't have to look through history very hard to find laws that were long afterward considered barbaric.

The differentiation between law and morality is an important one. I enjoy being in a nation of laws, but it is my duty as a free man to question those laws which would conflict with my moral code. Any law that creates a victim out of a man is NOT in tune with my moral code.

 

[rajb123]

We don't know the full facts of this case, for example, it was revealed yesterday that Zimmerman is Spanish and has black blood in his family. The media has hyped this case into a racial profiling situation, which it probably is not.

How does the SYG law work when one person follows another? At some point, the two men (males) must of stopped and then a confrontation began. Since there are no eye witnesses and Zimmerman called 911 earlier to report a suspicous person, the benefit of doubt is given to him under SYG; right?

I would say this is assumption is appropriate under the SYG law.

 

[Carl N. Brown]

Where in the body of law on self defense, castle doctrine, or stand your ground does the law say it is limited to defensive use of a gun and limited to a gun carried with a permit? I believe self defense law speaks of use of lethal force in defense against an attack that would put a reasonable person in fear of death or greivous bodily harm. Handgun carry permit/license laws directly address defensive guns, but self defense law is more general.



(see fine tuning from kleanbore in post #117 when immediately necessary and imminent; of course, the attacker must have ability and opportunity to put the defender in jeopardy.)

 

[Captain33036]

Mods - would you signal if it is permissible to speculate or otherwise discuss hypothetical situations similar to the subject case?

 

[Orkan]

I believe self defense law speaks of use of lethal force in defense against an attack that would put a reasonable person in fear of death or grievous bodily harm.

I agree completely.

 

[sawdeanz]

Cosmoline has been the first to make me question whether or not FL SYG needs additional clarification. At the same time innocent people need to be protected when they confront someone verbally ("Hey you kids need to quit loitering around here") and then that escalates further then they intended (the kids start chasing him with baseball bats, an outcome he was clearly not expecting nor inviting).

The way I see it, if you have the ability to retreat/deescalate safely, then your life is not in danger and therefore self defense/SYG don't apply and you should not be using deadly force. Otherwise, if your life is in danger you are already at a point where retreat is probably not an option. SYG protects you from prosecutors who try to convince the jury that you had an opportunity to escape even though at that point it was clear that the bad guy wanted to hurt you whether you retreat or not. That is why I have a problem with duty to retreat laws.

 

[Carl N. Brown]

Reporting in a defensive incident is everything. Whoever is standing is the one heard by the police. But that does not always mean that what they say will stand up after investigation or hearing before a grandjury, trial judge or trial jury.

 

[Kleanbore]

I believe self defense law speaks of use of lethal force in defense against an attack that would put a reasonable person in fear of death or greivous bodily harm.

...self defense law speaks of use of lethal force when immediately necessary in defense against an attack that would put a reasonable person in fear of imminent death or grievous bodily harm.

 

[ns66]

i can imagine a sample case SYG will make a difference:

A and B both carry and both know other carries
in argument, with hand on hoster A said to B, "hey get the F off or i will kill you"

without SYG, B must leave, otherwise if shooting happens he is in serious trouble
with SYG, B can stay, if shooting happens B is covered at least in the aspect of not leaving

 

[rajb123]

If the shooter called 911 to report a suspicious person and asked for the police to come to that location, wouldn't that support a conclusion that he felt threatened and, therefore, was justified in using deadly force?

 

[Carl N. Brown]

#119^ Don't think the "get the F off or I will" meets the imminency test; if the threat is conditional or future, is the defender really in jeopardy now? What I recall of the class on self defense law is that a verbal threat of future action does not meet the test. "Hey get the F off or I will kill you" sounds more like a stern warning than an actual death threat. The author of the Florida SYG law has a guest editorial worth reading on the subject of SYG: http://www.foxnews.com/opinion/2012...alleged-attacker-not-covered-under-law-wrote/
IF B can leave, SYG does not cover continuing to engage in a mutual combat that is avoidable by walking away.

Another hypothetical, Trayvon Martin could have responded to "What are you doing here?" with "Walking home to my dad's house from the store".

 

[MisterMike]

I really hate the term "Stand Your Ground," which seems to me to be tailor-made to the arguments of anti-gun activists. What it suggests is the notion that a belligerent individual involved in an altercation has the right to use deadly force to enforce his right to occupy the 1.5 square feet of land upon which he is standing.

In reality, it's nothing more than a restatement of the classic principle of self-defense: one who is reasonably in imminent fear of wrongful, serious physical harm or death has the right to use deadly force to defend himself. The whole notion of a duty to retreat was a well-intentioned, but somewhat disastrous, legal doctrine that emerged out of the notion that an intended victim should have an affirmative duty to run away, rather than resort to bloodshed, if it was feasible.

The problem was that this heightened standard, applied to the intended victim of wrongful violence, led to some perverse legal outcomes. Practically speaking, individuals have been convicted of batteries, murder, and attempted murder (and held civilly liable) in situations where a wildly impractical theory of an escape was accepted by a jury. I think most all of us would agree that the best theoretical outcome of any violent or potentially violent confrontation is to get out of Dodge and not inflict harm on others, even if they're murderous thugs. However, the practical reality is that in many instances, an attempt to flee an individual bent on causing you harm or death will only result in you being shot in the back, clubbed or the head, or meeting your demise in some other way.

The practical effect of mandating an attempt to escape is that people who could truly could not have done so safely, end up losing their freedom and their property. SYG laws--again, an abysmal description--save the lives of innocent victims.

 

[ns66]

#119^ Don't think the "get the F off or I will" meets the imminency test; if the threat is conditional or future, is the defender really in jeopardy now? What I recall of the class on self defense law is that a verbal threat of future action does not meet the test. "Hey get the F off or I will kill you" sounds more like a stern warning than an actual death threat. The author of the Florida SYG law has a guest editorial worth reading on the subject of SYG: http://www.foxnews.com/opinion/2012...alleged-attacker-not-covered-under-law-wrote/
IF B can leave, SYG does not cover continuing to engage in a mutual combat that is avoidable by walking away.

Another hypothetical, Trayvon Martin could have responded to "What are you doing here?" with "Walking home to my dad's house from the store".

if "get the F off or i will kill you" is not a death threat i don't know what is, and A certainly has the ability to do that within a second which B can not react to, this is "imminent danger" as it could be

 

[Ed N.]

The so-called "SYG" law isn't the real issue, despite all the media hype and internet discussion. The SYG law is embedded in Florida Statute 776.013 and reads:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

This is fairly straightforward and is not the real source of problems for the police and the state attorney. The problem comes from another part of Florida's law, FS 776.032, which reads:

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in .... As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection

Please note carefully the items in bold red.


This law is intended to prevent police and prosecutors from taking a "lock 'em up and let a jury decide" approach to alleged self-defense shootings. The police and the state attorney have to have a damn good case against the shooter before they can even arrest him.

Where the Florida legislature screwed up royally was in not setting out an explicit means for getting to a legal determination of whether a shooting was a case of self defense. Different jurisdictions across the state have taken different approaches. Sometimes the state attorney makes the decision (usually where it's pretty obviously murder), sometimes there's some sort of hearing before a judge, sometimes it goes to a grand jury. Until that determination happens, they cannot legally arrest the shooter.

Arresting a shooter in violation of this law, and having the shooter ultimately win in court, could subject the local gov't, the police, and the state attorney to all sorts of liability for violating the shooter's civil rights.

 

[JRH6856]

Where the Florida legislature screwed up royally was in not setting out an explicit means for getting to a legal determination of whether a shooting was a case of self defense.

Thanks for that, Ed N. That makes things a bit clearer.

I said, bad law makes bad cases. I just had the wrong law.