Why "stand your ground" is good law

[gym]

Only you know when you feel that your life is in danger. No one can tell you when that is. The retreat takes a back seat to being in fear of dying. You may use deadly force if you feel that your life is in immanent danger.
My threshold may be different from someone else's. But as long as the fear is legitimate who is to say one of us didn't feel that way before someone else, and who can really make such a determination, again as long as the circumstances are legitimate and there is ample evidence that an act resulting in death might occur.

 

[Kleanbore]

Posted by gym: Only you know when you feel that your life is in danger. No one can tell you when that is. The retreat takes a back seat to being in fear of dying. You may use deadly force if you feel that your life is in immanent danger. My threshold may be different from someone else's. But as long as the fear is legitimate who is to say one of us didn't feel that way before someone else, and who can really make such a determination, again as long as the circumstances are legitimate and there is ample evidence that an act resulting in death might occur.

That's not the way it works. The question is not the individual's personal level of trepidation; it is his or her reasonable belief.

The first question is whether the individual did in fact have reason to believe (1) that he or she had faced an imminent threat of death or serious bodily harm, and (2) and that force had been immediately necessary to defend against that threat. The second question is whether the individual had actually believed that.

And yes, someone else will decide that.

Other critical factors include the question of whether the individual had instigated the confrontation or had been engaged in other unlawful activity, and whether the defender used no more force than had been necessary.

 

[kwguy]

^^
Exactly. Monday morning quarterbacking. At least SYG laws give the defender a chance against those that want to slam them for defending themselves in the heat of the moment.

 

[Kleanbore]

Posted by kwguy: Monday morning quarterbacking.

That phrase is commonly applied, but realistically, when one human being has used force with serious effect against another, it is necessary for law enforcement and possibly for triers of fact to piece together what happened.

Was it murder, or an attempt at same, or some thing along those lines? A robbery gone bad? The result of a brawl? The result of gross negligence, or perhaps an accident?

Was it justifiable use of force necessary for self preservation? Would it be reasonable to accept unquestioned the word of the self-proclaimed defender on that count?

At least SYG laws give the defender a chance against those that want to slam them for defending themselves in the heat of the moment.

In my view, what they do is remove from the defender, provided that all other elements of justification were present, the potentially very problematical burden of presenting evidence as to why safe retreat had not been practical.

Many centuries ago, when travelers or others ended up using force in the form of contact weapons, learned judges thought that burden reasonable.

Today, we have weapons that apply force from which escape is not feasible, and many more ways of examining forensic evidence.

I would like to have been present during the deliberations of the various state courts and of SCOTUS in which the duty to retreat was decided to no longer be reasonable as a matter of law.

 

[brickeyee]

I find the "SYG will make a good boy go bad" argument distasteful.

we have had this in the common law of Virginia for many years now, and it has not created any large number of shooting incidents.

The whole state has very few for the most part (except certain areas of high population density).

And even the worst places are still not all that high.

We are also armed to the teeth.
Something approaching half a million gun sales in the past year (from NICs checks run by the State police) while our crime rate has continued to decline (about 5% IIRC).

Until you cross the Potomac River to Washington, DC ( a liberal Democrat mecca) and parts of Maryland near Washington, DC or in Baltimore the crime rates go up significantly.

These places restrict purchase and carry far more than Virginia, a shall issue state.

 

[gym]

Someone will decide if he's telling the truth, not how he felt.

That's going way back to when I took my 3d interview with the NYPD, If I felt my life was being threatened, I could use deadly force to protect it. Even though there was no such law in NY or anyplace "I believe", 44 years ago.
That's why you have so many problems with people who evoke the stand your ground law at the scene of a shooting now. Police usually have to let them go while investigating, unless there is an obvious reason why they shouldn't.
He broke in and attacked me, I was in fear for my life, he left me no choice, I had no other option, I shot him, . Now you say no more, and contact an attorney, offering to comply with any investigation after 24 hours has gone by in which you have representation. That's what Ayoob says "not a direct quote, and the basic premise that most lawyers will tell you.

 

[Kleanbore]

Posted by gym: That's why you have so many problems with people who evoke the stand your ground law at the scene of a shooting now. Police usually have to let them go while investigating, unless there is an obvious reason why they shouldn't.

Whether or not ether the black law or legal precedent imposes a duty to retreat is completely independent of whether the police "have to let them go...unless...". The latter relates to the question of probable cause, and in some cases, to laws that establish immunity from prosecution in the event that an act involving the use of force was lawfully justified.

Some states do have a provision for immunity from prosecution, and some, but not all of them, have also eliminated the duty to retreat.

 

[Kleanbore]

Posted by gym: He broke in and attacked me, I was in fear for my life, he left me no choice, I had no other option, I shot him, . Now you say no more, and contact an attorney, offering to comply with any investigation after 24 hours has gone by in which you have representation. That's what Ayoob says...

Massad Ayoob has explained how a prosecutor can use as statement such as "I was in fear" to the disadvantage of a defendant.

Ayoob's recommendations regarding what to say after a defensive shooting are addressed here.

Massad Ayoob recommends:
Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
Pointing out possible witnesses before they vanish.
Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

 

[gym]

We are really saying the same thing, if someone breaks into your home in the middle of the night "or any other time" and threatens your life, I doubt weather a LEO is going to do much other than possibly take you down, to the station, and fill out a report, possibly hold on to your weapon and ask you what happened. At that point you have already made the statement that you shot the guy because you felt that you had no other option, being that you felt your life was in mortal danger.
Even if there was no SGL, you would be in the right, assuming you could not just walk away. Ayoob just wants those statements of cooperation, and pointing out that yes you did shoot the person because you had no option.
Chances are the forensic guys are there in a few minutes any how. Then you just do what your lawyer tells you.
I have read of cases where they didn't even take the victim into custody or do much else.
I think the law would be tested more if you were not at home, and had a confrontation out and about, and you theoretically may have been able to run away, or hide from the attacker. That's when it gets tricky. Obviously in your house you aren't going to leave while someone attacks you and your family, unless you are unarmed and can safely do safely.
There is a fine line as to when you should engage a perp on the street, is he 10 ft away or 50 ft away, and is he or they, posing a direct threat to you, or are you getting involved when you don't need to. That is more when judgment comes in, and a person should know what their allowed to do and not do. We are not cops and really have no duty to interfere if we, or an innocent person is being threatened, even then it would be difficult to tell if they were all strangers. The victim may know the perp or even be related like husband and wife, you really need to be careful what you get yourself into.
It used to be that you had to make every effort to retreat, and only then use your weapon, even if that meant running away. Sometimes that may still be the best option, if you aren't involved directly and can't tell who the players are.
You may think you are protecting or saving someone who ends up testifying against you.

 

[Kleanbore]

Posted by gym: Obviously in your house you aren't going to leave while someone attacks you and your family, unless you are unarmed and can safely do safely.

Getting into tactics here, but another time to leave is when you have come home to find indications that there are people in the house.

It used to be that you had to make every effort to retreat, and only then use your weapon, even if that meant running away. Sometimes that may still be the best option, if you aren't involved directly and can't tell who the players are. You may think you are protecting or saving someone who ends up testifying against you.

...or who happens to not be an innocent person whom you may lawfully protect with force.

But realistically, if you can safely depart without putting family at risk, it is always the best option.

 

[brickeyee]

prosecutor can use as statement such as "I was in fear" to the disadvantage of a defendant.

In Virginia you better say more than simple fear or you are in a world of hurt.

One of the court rulings even calls out simple "bald" fear as NOT adequate.

You must be in fear of your life (or grave injury, but watch out how the law has defined"grave injury").

Despite the possibility of death from a single punch and there was even such a death in South Arlington a few years ago), fists are NOT considered deadly weapons per se.

Getting your teeth knocked out is not a 'grave injury' either at this point.
Grave injury is just that, it has a chance (at some level) of putting you in the grave (killing).
As in the perp is going to kill you right then and there, add has means, motive, capability.

 

[gym]

http://www.youtube.com/watch?v=lPEEeOFSnxE


Breaking the Lies on STAND YOUR GROUND Laws with Massad Ayood and Clayton Cramer

 

[Pizzapinochle]

This thread has been inactive for awhile, but a new incident just came up that reminded me of it.

Retired police officer shoots and kills another patron in a movie theatre in an argument:

http://fox13now.com/2014/01/14/one-piece-still-missing-from-puzzle-of-fatal-theater-shooting-why/

Now, maybe I am just exposed to it more because i live in Florida, but it sure seems like in this state, people are much more likely to shoot first. The "stand your ground" laws in this state make people believe they have greater leeway in when they can shoot.

Even thought the "stand your ground" claim has already been rejected in this case, the victim is dead and I believe that the "stand your ground" mentality contributed to that.

On a side note, from a strategy/tactics/SD perspective, one shot from a .380 was instantly incapacitating and deadly.

 

[tomrkba]

It's quite simple: people die or get maimed in those moments while they assess and attempt to flee. The attacker has the initiative and maintains control of the encounter until the requirement to not flee has been met. At that point, the defender may counterattack, but the fight will likely already be resolved to the attacker's benefit.

SYG addresses this problem by allowing the defender to act immediately to save his or her own life without entirely yielding the initiative to the attacker.

 

[Frank Ettin]

...victim is dead and I believe that the "stand your ground" mentality contributed to that...

Do you have any actual evidence of that, or is it just what you believe because it's what you believe?

Also, it appears that it's yet to be determined by a court whether the person who was shot and killed is the "victim" or the "assailant."

 

[Pizzapinochle]

Do you have any actual evidence of that, or is it just what you believe because it's what you believe?

Well, obviously there is no definitive proof in this precise incident. Short of a mind reading device that can look into the past, we can't know with certainty what was going through anyone's head in any moment.

But, there has been a lot of research (I think I reference it earlier in this thread) that people who perceive violence or aggression to be justified or allowable are more likely to act aggressively or violently.

Without question, stand your ground expands when violence/aggression is justified by removing barriers (duty to flee).

Based on public comment on the issue, the perception of stand your ground (even if that perception is not accurate) is that it expands when violence/aggression is justified even beyond that.

I realize that a mis-perception of a law does not necessarily make it a "bad" law, but if people are being killed unnecessarily (as seems to have been the case on several occasions) and the perception of the law is contributing, something needs to change. Even if it is a good law, innocent people being shot is a bad result and the law does not exist in a vacuum of "good/bad," we must consider the result.

 

[Frank Ettin]

...But, there has been a lot of research (I think I reference it earlier in this thread) that people who perceive violence or aggression to be justified or allowable are more likely to act aggressively or violently...

The only references I find are in post 91 where you, yourself, admit:

...THat I know of, there is not a study directly coorelated to this topic,...

You are merely extrapolating from other studies on aggression generally. But you provide no support for that extrapolation -- other than your subjective beliefs.

...Without question, stand your ground expands when violence/aggression is justified by removing barriers (duty to flee)....

And that statement is further evidence of your inclination to subjective hyperbole. Of course that conclusion is subject to question, especially since, as you admit, you are aware of no definitive studies establishing a link.

 

[Pizzapinochle]

The only references I find are in post 91 where you, yourself, admit:

​

You are merely extrapolating from other studies on aggression generally. But you provide no support for that extrapolation -- other than your subjective beliefs.

This is not subjective:
___

The studies state that people who perceive that violence or aggression is acceptable/justified are more likely to act aggressively or violently. Those are the findings.

Stand your ground laws change the perceived (and actual) justification/acceptability of the use of aggression/violence, making the use of aggression/violence MORE acceptable/justifiable.

Under stand your ground laws, because the acceptable times to use aggression/violence is expanded, people are more willing to use aggression/violence under Stand Your Ground laws.

___

That is simply applying the research findings to a specific situation.

And that statement is further evidence of your inclination to subjective hyperbole. Of course that conclusion is subject to question, especially since, as you admit, you are aware of no definitive studies establishing a link.

There is NOTHING subjective or hyperbolic about my statement.

“Without question, stand your ground expands when violence/aggression is justified by removing barriers (duty to flee). “

That is not a subjective statement.

It is a fact that under “stand your ground laws,” the instances in which a shooting would be considered justified is expanded relative to “duty to retreat” laws.

Under “duty to retreat” laws, there is a duty to retreat (an extra barrier) before a shooting is justified.

Under “stand your ground” laws, there is NOT a duty to retreat before a shooting is justified.

Stand your ground EXPANDS when a shooting is justified. That is what the law is intended to do, that is why everyone around here defends the law. Nothing subjective about it.

 

[ilbob]

I am not a fan of legally requiring people to retreat when attacked.

Having said that, I am generally a fan of retreating as one's preferred response to an attack.

 

[Frank Ettin]

...That is simply applying the research findings to a specific situation. ...

A specific situation which was not considered or examined in those studies. So you are assuming that the specific situation of Stand Your Ground laws is sufficiently similar to the situations that were studied to allow the study conclusions to be extended. And you apparently have no basis upon which to do so -- except of course that you want it to be thus.

That is junk science. That is subjective.

...There is NOTHING subjective or hyperbolic about my statement.

“Without question, stand your ground expands when violence/aggression is justified by removing barriers (duty to flee). “

That is not a subjective statement...

Of course it's subjective. Whenever someone says, "Without question...." what follows must be suspect. There is very little in this life that may be stated "without question", especially in the absence of specific, on-point studies.

In any case, it's pointless to continue this "it is -- it isn't" business. Your words are here for all to see -- including your fairly obvious bias. So folks can draw their own conclusions.

 

[Pizzapinochle]

I'll leave the first half of my statements alone at this point, discussing the finer points of social/psychological research is probably not going to be beneficial, but on the second part I don't really understand why you are disagreeing with me.

I'm not sure if I am being unclear, if you are combining the separate components of my statement into one, or if you are just disagreeing with me on everything because you disagree with my final conclusion, but I really don't see how this statement:

"Stand your ground expands when violence/aggression is justified by removing barriers (duty to flee). "

Is subjective or biased in any way.

Conditions for a shooting to be ruled justified-

Under "Duty to Retreat" laws:

1. Threat of imminent loss of life or significant bodily harm
2. Victim has exhausted every attempt to flee.

Under "Stand Your Ground" laws:

1. Threat of imminent loss of life or significant bodily harm

Under "Duty to Retreat" there is an extra requirement (that the victim attempt to retreat) that must be met for a shooting to be justified by law. Under "Stand Your Ground," that requirement is removed. That seems pretty clearly to "expands when violence/aggression is justified" in self defense shootings.

Am I wrong in some way that "stand your ground" laws expand the circumstances under which a self-defense shooting is justified?

 

[DT Guy]

Either you agree with 'Stand your Ground' or you prefer 'Good Guy Must Flee In The Face of Violence.'

All the psycho-drivel (I have a degree in it...) won't change that clear and forthright dichotomy; you either think it's the duty of the innocent to flee the wicked, or you don't.

I don't. And I think that the mentality that they should has a corrosive effect on society which is difficult to measure. Compare that to the common law tradition in England that a 'gentlemen' had a duty to capture or kill a robber, to protect the less fortunate that might end up his prey, and you've boiled the two sides of this issue down to the core.

Some folks abhor violence so much, they don't even want it to happen to bad people; those folks are deluded.

Larry

 

[Frank Ettin]

...Am I wrong in some way that "stand your ground" laws expand the circumstances under which a self-defense shooting is justified?

In effect you are wrong because you're not analyzing this in the correct, legal context. This is not about "circumstances." It's not a matter of "it's Tuesday so I can do X."

The issue revolves around what an actor must establish in order to satisfy the legal requirements necessary to justify his otherwise criminal act and thus be exonerated from criminal liability for that otherwise criminal act -- the use of force against another human -- and how he must establish that.

To understand these concepts you need a basic grounding in use-of-force law and how one defends himself in court on a self defense theory. You might well start here and here.

So if you have used force against another person, you have prima facie committed some crime. Your defense is that your use of force was justified, and you must at least put forth evidence which would lead to the conclusion that each element necessary to satisfy the requirements for justification have been satisfied.

If one of those elements is that you could not safely retreat, you must put on good evidence establishing that; and that evidence must be sufficient to overcome the prosecutor's efforts to rebut your claim. And there's the rub.

Being confronted by an assailant who one reasonably has concluded has manifest an intent to immediately kill or cripple him first generated considerable stress and second requires some sort of immediate and decisive response. When the law imposes a duty to retreat, if it can be done in perfect safety, the victim has but an instant to recognize an opportunity to retreat and decide that he may safely take that opportunity. And of course, if he decides wrong he will be killed or gravely injured.

So of course the person who concluded that he did not have the opportunity to safely retreat may now explain that all to a prosecutor and jury. And of course he will explain how and why in that instant under extreme stress a reasonable person would have concluded the same thing.

The problem is all that instant decision making will be second guessed by a prosecutor and/or jury who comparatively have all the time in the world. Stand Your Ground laws essentially recognize the difficulty a jury can have understanding and accepting a decision not to attempt to retreat.

So Stand Your Ground Laws are an attempt to resolve a potential injustice when there is, on one hand, a person desperately in fear of his life and genuinely and reasonable unaware of the opportunity to retreat, and on the other hand, a prosecutor or jury having the luxury of detached reflection.

 

[Pizzapinochle]

I’ve read both those threads and, while I am not an expert, I understand it.

I really don’t see anything in your response that contradicts what I said, but I will rephrase it using the language you used.

“you must at least put forth evidence which would lead to the conclusion that each element necessary to satisfy the requirements for justification have been satisfied.”

So, to restate…

“Stand your ground reduces the elements necessary to satisfy the requirements for justification for the use of violence/aggression.”

It is saying the same thing, but rephrased to use your language.

“If one of those elements is that you could not safely retreat, you must put on good evidence establishing that…”

Under “Stand Your Ground,” you do NOT have to establish that, because that is not an element required by law. That is the only point I am trying to make… that under Stand Your Ground, there are LESS elements to be met for a shooting to be justified.

Thus, a situation that would NOT be justified under Duty to Retreat (because an avenue of escape is available) may be justified under Stand Your Ground (because an avenue to escape is not an element necessary to satisfy the requirements for justification for the use of deadly force).

“So Stand Your Ground Laws are an attempt to resolve a potential injustice when there is, on one hand, a person desperately in fear of his life and genuinely and reasonable unaware of the opportunity to retreat, and on the other hand, a prosecutor or jury having the luxury of detached reflection.”

Correct, that is what SYG laws are. To accomplish that, they REDUCE the requirements/elements that a jury must review. SYG takes out the question of “Could he/she have retreated?” It reduces the requirement, thus expanding the situations that would be ruled justified.

Which is exactly what I said in the first place....

"Without question, stand your ground expands when violence/aggression is justified by removing barriers (duty to flee)."

The language can be tweaked, but the basic meaning (under SYG, there are less requirements for a SD shooting to be justified) is the same.

 

[oneounceload]

FL has amended their SYG law to include the potential of a threat as a legal excuse to use deadly force. Yeah FL

http://watchdog.org/115902/florida-moves-expand-stand-ground/

A Florida defense attorney tells Florida Watchdog he welcomes proposed legislation that expands the state’s controversial “stand your ground” law to include protection to those firing warning shots.