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The real problem with Florida's stand your ground law

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vitus979

Apr 12, 12 12:49

Post #1 of 27 (1154 views)

The real problem with Florida's stand your ground law	Quote \| Reply

Was listening to NPR a little while ago, and they had a couple of lawyers discussing the charges against Zimmerman. They brought up a lot of good points, key among them that most people have focused their attention on the wrong part of Florida's stand your ground law. For all the chatter about how it removes a legal duty to retreat from the threat of force, it really does not change anything about self-defense, legally. The provision that I think causes problems is this:

(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.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

ziptied

Apr 12, 12 13:51

Post #2 of 27 (1117 views)

Re: The real problem with Florida's stand your ground law [vitus979] [In reply to]	Quote \| Reply

The issue is if I shoot you and claim self-defense, and there are no witnesses around, it is the states job to build a case. I am not going to testify against myself. In instances where this occurs in a public (or not privately owned by you) place, the burden of proof should fall on my shoulders (or the shooter claiming self-defense). Perfect example, a few years back in Tallahassee there was a gang fight in which an individual claimed self-defense after shooting a few dudes and got off.

vitus979

Apr 12, 12 13:56

Post #3 of 27 (1110 views)

Re: The real problem with Florida's stand your ground law [ziptied] [In reply to]	Quote \| Reply

The issue is if I shoot you and claim self-defense, and there are no witnesses around, it is the states job to build a case.

Yes, agreed. I think the issue here though is that if I shoot someone in self-defense, I fully expect to be arrested while the authorities investigate. I expect that there will be some evidence corroborating my story. If there's not, I think I'll probably be charged with a crime- depending, I suppose, on how credible the authorities perceived me and/or my story to be.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Rodred

Apr 12, 12 13:56

Post #4 of 27 (1110 views)

Re: The real problem with Florida's stand your ground law [ziptied] [In reply to]	Quote \| Reply

ziptied wrote:

The issue is if I shoot you and claim self-defense, and there are no witnesses around, it is the states job to build a case. I am not going to testify against myself. In instances where this occurs in a public (or not privately owned by you) place, the burden of proof should fall on my shoulders (or the shooter claiming self-defense). Perfect example, a few years back in Tallahassee there was a gang fight in which an individual claimed self-defense after shooting a few dudes and got off.

Wouldnt that make it into a "presumed guilty" event and wouldnt that go agaisnt our system?

~
�The instinct to survive is human nature itself, and every aspect of our personalities derives from it. Anything that conflicts with the survival instinct acts sooner or later to eliminate the individual and thereby fails to show up in future generations.

BarryP

Apr 12, 12 14:15

Post #5 of 27 (1089 views)

Re: The real problem with Florida's stand your ground law [Rodred] [In reply to]	Quote \| Reply

Good point.

EDIT: I just spent a summer trying to prove that I didn't own a car that I didn't own so as not to pay a $5,000 fine for no tpaying insurance on it. Believe me, I was pissed at the amount of work I had to put into it when they had no evidence that I owned the car during the period they were fining me for.
-----------------------------Baron Von Speedypants
-----------------------------RunTraining articles here:
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(This post was edited by BarryP on Apr 12, 12 14:17)

tri_yoda

Apr 12, 12 18:33

Post #6 of 27 (1036 views)

Re: The real problem with Florida's stand your ground law [Rodred] [In reply to]	Quote \| Reply

Rodred wrote:

ziptied wrote:

The issue is if I shoot you and claim self-defense, and there are no witnesses around, it is the states job to build a case. I am not going to testify against myself. In instances where this occurs in a public (or not privately owned by you) place, the burden of proof should fall on my shoulders (or the shooter claiming self-defense). Perfect example, a few years back in Tallahassee there was a gang fight in which an individual claimed self-defense after shooting a few dudes and got off.

Wouldnt that make it into a "presumed guilty" event and wouldnt that go agaisnt our system?

Look at it the other way. You have to presume something. If you don't presume the shooter is guilty enough to at least arrest and call a GJ in the absense of witnesses, then you are presuming the dead person acted aggresively and/or everything the shooter says is true. I would like to think the discretion to make this decision goes beyond the officer at the scene; e.g. if they decide not to arrest, the case is closed (until there is a national outcry). The presumed guilty would only be in the sense of building the indictment. The accused still gets their day in court, and the prosecution still has the burden to prove the crime.

Rodred

Apr 12, 12 18:42

Post #7 of 27 (1027 views)

Re: The real problem with Florida's stand your ground law [tri_yoda] [In reply to]	Quote \| Reply

tri_yoda wrote:

Rodred wrote:

ziptied wrote:

The issue is if I shoot you and claim self-defense, and there are no witnesses around, it is the states job to build a case. I am not going to testify against myself. In instances where this occurs in a public (or not privately owned by you) place, the burden of proof should fall on my shoulders (or the shooter claiming self-defense). Perfect example, a few years back in Tallahassee there was a gang fight in which an individual claimed self-defense after shooting a few dudes and got off.

Wouldnt that make it into a "presumed guilty" event and wouldnt that go agaisnt our system?

No that is still guilty until proven innocent which isnt how it is suppossed to work.

Obviously they presume something since they have a dead body and they go through a process to determine why.

You collect evidence and then if it shows the shooter might be guilty you can bring a case.

I think that it went well beyond the officer on scene since he was taken to the police station and questioned. Thats not saying someone didnt make an error but if you have a man with a broken nose and a gash in the back of his head and he says he was jumped and scared for his life and sadly had to shoot someone, then its sort of easy to see( based on the laws of the state) that he could be released after his questioning.

~
�The instinct to survive is human nature itself, and every aspect of our personalities derives from it. Anything that conflicts with the survival instinct acts sooner or later to eliminate the individual and thereby fails to show up in future generations.

(This post was edited by Rodred on Apr 12, 12 18:49)

Duffy

Apr 12, 12 19:10

Post #8 of 27 (1012 views)

Re: The real problem with Florida's stand your ground law [Rodred] [In reply to]	Quote \| Reply

I'm just going on free flow thought here (I know, bad idea for Duffy) but couldn't you get into a gun fight with another guy and both claim self defense under this law?

I mean something like two dudes who are both "criminals" get into it, both draw and start firing.

"He was shooting at me."

"He was shooting at me."

"You're both free to go."

____________________________________________________
"This hip-hoppers ended up tightly connected with basketball along with highway dances."

SH

Apr 12, 12 19:38

Post #9 of 27 (997 views)

Re: The real problem with Florida's stand your ground law [Rodred] [In reply to]	Quote \| Reply

I'm no lawyer, but I did stay at a Holiday Inn Express at some point.

I also took some legal classes. I seem to remember a legal term called "prima facie". Basically, it involves establishing a set of facts that show "at first blush" a crime has been committed. It seems to me that a man with a gun standing over another dead man who has been shot in the back gives a pretty good prima facie case that the shooter acted illegally. (Well, it's a great start of a prima facie case if nothing else.)

Maybe I'm missing something?

TheForge

Apr 12, 12 19:54

Post #10 of 27 (987 views)

Re: The real problem with Florida's stand your ground law [SH] [In reply to]	Quote \| Reply

Was somebody shot in the back? I thought from several sources including the charge instrument tm was shot in the chest. If he was shot in the back, syg wouldn't apply by any stretch.

Rodred

Apr 12, 12 20:10

Post #11 of 27 (974 views)

Re: The real problem with Florida's stand your ground law [Duffy] [In reply to]	Quote \| Reply

Duffy wrote:

I think that has been one of the complaints and someone pointed out that something like that happened except one didnt walk away. That would be a tough one for the courts.

~
�The instinct to survive is human nature itself, and every aspect of our personalities derives from it. Anything that conflicts with the survival instinct acts sooner or later to eliminate the individual and thereby fails to show up in future generations.

Rodred

Apr 12, 12 20:17

Post #12 of 27 (967 views)

Re: The real problem with Florida's stand your ground law [SH] [In reply to]	Quote \| Reply

SH wrote:

Shot in the back would change everything. Shot bys someone with injuries and witnesses saying he was attacked in a state where its legal to carry and defend yourself? Not so much although obviously it would be looked over thoroughly.

Speaking of which I can't even imagine the pressure the DOJ is bringing to bear on this case given Holder and Perez slant on such ( or any unless it involves them committing crimes against each other) incidents involving minorities. And by minorities I mean anyone not white except maybe white-Hispanics. You only have to read Holders comments to Sharptons group yesterday to see how it cant be pretty for anyone involved on the prosecution side and I wouldnt be surprised if they went after Zimmerman with every charge under the sun including several civil right charges.

~
�The instinct to survive is human nature itself, and every aspect of our personalities derives from it. Anything that conflicts with the survival instinct acts sooner or later to eliminate the individual and thereby fails to show up in future generations.

SH

Apr 12, 12 20:21

Post #13 of 27 (963 views)

Re: The real problem with Florida's stand your ground law [TheForge] [In reply to]	Quote \| Reply

I heard Martin was shot in the back from some large media outlet. But I'm starting to doubt it now. I just checked into it. There are reports online, but not enough references to make it look reliable.

vitus979

Apr 12, 12 20:25

Post #14 of 27 (958 views)

Re: The real problem with Florida's stand your ground law [SH] [In reply to]	Quote \| Reply

I don't think you're missing anything. I think that's the way it usually works, and I don't think it violates the principle of presumption of innocence in any way.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

iron_mike

Apr 13, 12 0:59

Post #15 of 27 (914 views)

Re: The real problem with Florida's stand your ground law [Duffy] [In reply to]	Quote \| Reply

Duffy wrote:

yeah, that's a huge problem i have with it. to follow on to the OP, i think the 'real' problem with the law is that it's batshit crazy! you sort of set up a hobbesian trap of constant escalation - everyone will be 'standing their ground' because everyone around them will pose a theoretically credible threat. philosophically, i think the law almost just throws its hands up in the air and admits that the social contract is sort of falling apart - we don't trust the police, we don't trust our fellow citizens . . . strange. i don't live in florida, but if those who do live there feel this law is necessary . . . well, then i'm glad i don't live there.

-mike
____________________________________
http://utoronto.academia.edu/MikeCallaghan

http://howtobeswiss.blogspot.ch/

iron_mike

Apr 13, 12 3:39

Post #16 of 27 (898 views)

Re: The real problem with Florida's stand your ground law [iron_mike] [In reply to]	Quote \| Reply

should also add that i'm not sure of the exact wording: is it that the law allows you to 'stand your ground' (ie., use deadly force) when you "feel yourself to be threatened" or when you "are threatened?"

that's a pretty important distinction, i think - obviously a 'threat' (just like 'terrorism', i suppose) is a completely subjective thing that only works if there's a recipient to feel threatened. what might one person interprets as threatening behaviour might seem relatively benign to another. is there some objective measure of 'threat' in the law, or a 'what a reasonable person reasonably thinks"-kind of factor built in?

can someone clarify this for me?

-mike
____________________________________
http://utoronto.academia.edu/MikeCallaghan

http://howtobeswiss.blogspot.ch/

Duffy

Apr 13, 12 4:55

Post #17 of 27 (873 views)

Re: The real problem with Florida's stand your ground law [iron_mike] [In reply to]	Quote \| Reply

It used to be that if someone was gonna fuck you up, you had to attempt to get away. Now if someone is trying to fuck you up, you can just shoot 'em. Which, on it's face, is ok by me.

But, as usual, when governments try to find solutions to government created problems everything turns to shit.

Maybe, just maybe, someday a large portion of the populace will figure this out.

____________________________________________________
"This hip-hoppers ended up tightly connected with basketball along with highway dances."

vitus979

Apr 13, 12 5:01

Post #18 of 27 (866 views)

Re: The real problem with Florida's stand your ground law [iron_mike] [In reply to]	Quote \| Reply

I'm not sure what difference the stand your ground law makes in this type of scenario, as far as the actions of those involved go. It is not as if under the old law, they weren't allowed to shoot at each other, but under the new law, they are. Whether or not one, both, or neither of the two gangsters shooting at each other are justified in doing so hasn't changed because of the stand your ground law.

The only difference, as far as I can tell, is that previously, they both would have been arrested (assuming they both survived) and now, it's conceivable that neither of them would be.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Eppur si muove

Apr 13, 12 5:04

Post #19 of 27 (864 views)

Re: The real problem with Florida's stand your ground law [ziptied] [In reply to]	Quote \| Reply

In instances where this occurs in a public (or not privately owned by you) place, the burden of proof should fall on my shoulders (or the shooter claiming self-defense).

Seems to me that such a policy could frequently put people in a morally impossible situation--e. g., where you were faced with the choice between (1) getting murdered and (2) acting in self-defense without any other witnesses or other evidence to back you up.

iron_mike

Apr 13, 12 5:04

Post #20 of 27 (864 views)

Re: The real problem with Florida's stand your ground law [vitus979] [In reply to]	Quote \| Reply

so per my 2nd post, is there some mechanism for determining who was 'at threat/standing his ground' and who was not? or is zimmerman/martin really the test case?

-mike
____________________________________
http://utoronto.academia.edu/MikeCallaghan

http://howtobeswiss.blogspot.ch/

Eppur si muove

Apr 13, 12 5:17

Post #21 of 27 (854 views)

Re: The real problem with Florida's stand your ground law [iron_mike] [In reply to]	Quote \| Reply

should also add that i'm not sure of the exact wording: is it that the law allows you to 'stand your ground' (ie., use deadly force) when you "feel yourself to be threatened" or when you "are threatened?"

The actual criterion is "reasonable belief," which IMO isn't quite the same as either of those. "Feeling you are threatened" isn't necessarily reasonable belief, since people can have irrational beliefs. But since we are not omniscient and have to infer from the partial information we have available to us in a situation, it may sometimes happen that we can reasonably believe that we are threatened, even though we would be able to dismiss that threat if we knew more. Therefore "reasonable belief" is somewhere between "feeling threatened" and "real threat."

From wikipedia:

2011 Florida Statutes CHAPTER 776 JUSTIFIABLE USE OF FORCE[20]
776.012 Use of force in defense of person.�A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other�s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or(2) Under those circumstances permitted pursuant to s. 776.013.776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.�
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person�s will from the dwelling, residence, or occupied vehicle; and(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.(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.
(4) A person who unlawfully and by force enters or attempts to enter a person�s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term:
(a) �Dwelling� means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.(b) �Residence� means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.(c) �Vehicle� means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.776.032 Immunity from criminal prosecution and civil action for justifiable use of force.�
(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 s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. 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 (1).
776.041 Use of force by aggressor. �The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

vitus979

Apr 13, 12 5:18

Post #22 of 27 (852 views)

Re: The real problem with Florida's stand your ground law [iron_mike] [In reply to]	Quote \| Reply

The same mechanism exists for who was "standing his ground" as existed earlier, to determine who was the aggressor and who was the defender, if anyone. That hasn't changed.

To put it another way, before passage of this law, or in states that don't have stand your ground laws, you still are not going to be required to retreat if someone starts shooting at you- you're allowed to shoot back, because it's been long established that retreating is likely not a practical option when someone is shooting at you.

In the case of two gangsters shooting it out with each other, I don't know how you'd tell who was standing his ground- neither of them, probably, but I can imagine scenarios in which that's difficult to determine. Just as I can imagine scenarios in which it's hard to tell which one was the aggressor and which the defender- again, probably neither or them, but that might be hard to prove. That hasn't changed.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

cincytri

Apr 13, 12 6:20

Post #23 of 27 (824 views)

Re: The real problem with Florida's stand your ground law [tri_yoda] [In reply to]	Quote \| Reply

"Look at it the other way. You have to presume something. If you don't presume the shooter is guilty enough to at least arrest and call a GJ in the absense of witnesses, then you are presuming the dead person acted aggresively and/or everything the shooter says is true. I would like to think the discretion to make this decision goes beyond the officer at the scene; e.g. if they decide not to arrest, the case is closed (until there is a national outcry). The presumed guilty would only be in the sense of building the indictment. The accused still gets their day in court, and the prosecution still has the burden to prove the crime."

Couple of comments on the above. A jury trial is not the appropriate place to decide whether probable cause exists to make an arrest. That decision is left up to police officers, prosecutors and grand juries- depends on the jurisdiction. Until those parties make that determination, it is unfair for a defendant to incur the costs of being arrested. Our justice system recognizes the significant costs associated with being arrested including legal fees, bail or bond, loss of employment and damage to reputation. Where the facts are not clear, it is unfair to a subject of investigation to be required to overcome the probable cause burden. The authorities must satisfy themselves or a grand jury that there is probable cause and then be prepared to defend that determination beyond a reasonable doubt. That gap between P/C and reasonable doubt is for triers of fact and should only occur once PC is established. Simply having a "day in court" is small comfort to someone whose charges are later dismissed or found not guilty.

The jump to conclusions in this case is astonishing. My understanding is that the officers did want to arrest Zimmerman and a prosecutor declined to take the case. We can at least be certain that Zimmerman was in custody during the investigation. My own wild-ass-guess is that the officers decided there was probable cause to arrest and the prosecutor either disagreed or believed that he/she could not win the case at trial. I'm not really sure that the police bear the burden of the decision to not arrest Zimmerman unless one assumes a sloppy or incomplete investigation.

Here is the real kick in the nuts and I believe chainpin alluded to this in another post. The decision to charge Zimmerman may not be the first step in bringing about justice for anyone. By avoiding the GJ, the prosecutor accomplishes the goal of arresting Zimmerman without having to convince a GJ of Zimmerman's guilt based on probable cause. I my view, that is problematic. One can speculate all day, but what if that decision was made because she was doubtful that she could get a true bill by the GJ? If Zimmerman makes a successful "stand your ground" defense before trial or gets a not guilty verdict at trial, did arresting Zimmerman really accomplish anything? Other than, of course, placating the family, the media and Al Sharpton. For now at least.

There are literally thousands of "unsolved" crimes across this country. It is often the case that the police know who committed those crimes and even have some or a great deal of proof. The arrest is not made in those cases for a variety of reasons (including strategy), but it often boils down to a belief that simply arresting a suspect is not good enough and that a conviction should be the ultimate goal, not simply putting on the cuffs and doing a perp walk for the media.

Brick

Apr 13, 12 6:25

Post #24 of 27 (821 views)

Re: The real problem with Florida's stand your ground law [cincytri] [In reply to]	Quote \| Reply

A grand jury would indict a ham sandwich.

The only evidence a grand jury hears is what the prosecutor puts forth. My guess is that the prosecutor did not want to take the time to go through the formality of presenting it to a grand jury when she did not have to. I think there are some states where there are no mandatory grand jury proceedings and a prosecutor is the only one who decides whether to pursue charges.

cincytri

Apr 13, 12 6:33

Post #25 of 27 (813 views)

Re: The real problem with Florida's stand your ground law [Brick] [In reply to]	Quote \| Reply

I've heard the ham sandwich commentary before, but I wonder if that applies to cases such as this where media attention is so high? I think that it is entirely possible that a GJ might not be so interested in moving things along so they can get back home to their normal lives.

Another problem with the GJ approach in a case like this is having an investigator on record. In a case that is going to largely turn on interpretation of facts, I wonder about putting a detective in GJ and then having that testimony available to the defense during cross examination. Same goes for the witnesses.

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