"Stand Your Ground" op ed in the NY Times 3/21

[Carry_24/7]

@TomServo.....you chopped off the beginning of my statement. So by what you did post of my statement, you are 100% correct; there may be more to the story.

@Mleake...I did hear the Feds were stepping in, but I did not hear that the state was doing anything.....thats all good news you posted.

[CaptainObvious]

There is no way to intelligently discuss the Zimmerman/Martin case without fully knowing all the facts which means we have to wait until the investigation is complete and it is put through trial. Right now, on a daily basis, there is a combination of false statements, opinions presented as facts, transparent distortions, a complete absence of relevant details and most every news article is presented from the family's point of view with outdated pictures when Martin was much younger.

I have not formed an opinion on that particular case or Stand Your Ground because I do not know all the facts. I have stopped reading news articles on the case because I know they will not have all the facts. So we have to wait until the legal process has completed and, unfortunately, that might be at least another month or more. Our system is slow, but it works and all of the facts will be revealed in good time. We should most certainly not try a man by information we find on the internet and we should not strike down laws because of the sudden emotion an event presents at the time. We should be slow and methodical with our approach and make every move in the spirit of the Constitution. So we have to wait and I will decide upon this issue when the legal process has completed. Every person is entitled to due process and has rights in these matters which should be upheld no matter the situation.

[Mello2u]

The subject of this thread is supposed to be the article:
Focus Must Be Narrower by Adam Winkler published in the New York Times.
Focus on what he says, concludes and how he does it.
http://www.nytimes.com/roomfordebate...round-law-says

But remember:

Glenn E. Meyer Let's keep this one to the legal decision of what behaviors the law allows and not go off on the media, etc.
Thanks.

I think Uncle Billy and I are the only ones so far who have addressed the article.

[Al Norris]

Granted that what brought about Professor Winkler's article was the Martin/Zimmerman confrontation. This is however, not what this thread is supposed to be about, as Mello2u has stated above.

I am going to start banning folks that bring up the Florida shooting in context with this thread. Why? We know next to nothing of the actual facts of that case. Saying anything at this point, about that case, is mere speculation or emotions run amok.

Be warned!

[TheKlawMan]

I am not going to comment on the Martin shooting, since I know little or nothing about it, but I was aware of the Florida statute re The Castle Doctrine prior to the Martin shooting and had commented on the perceived problems with the statute. No; not on TFL. The sum and substance of my review was that the Florida statute gives rise to the presumption that a shooting was justifiable merely from the fact that a dwelling or a vehicle was unlawfully entered. For instance, if a drunk who had mistook your home for his down the street, entered it without permission (unlawfully) and passed out on the couch, a homeowner that chose to blow the sleeping drunk to kingdom come would be entitled to a presumption that he "held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another" and would be immune from prosecution.

What really griped me about Florida's statute was its failure to provide whether the presumption was rebuttable or irrebuttable. My understanding is that the statute was enacted to prevent over zealous prosecutors from forcing a shooter to prove that they held a reasonable fear of death or great bodily injury. To place the burden on the accused arguably flew in the face of system where one is presumed innocent until proven guilty. I tend to agree with that train of thought and believe that a shooter should be presumed to have feared imminent peril, as long as the presumption is rebuttable.

Were it rebuttable, then once any evidence is offered tending to prove that a fear of imminent death or injury was lacking, no presumption exists.

As for the stand your ground part of the statute, it really has nothing to do with the existence or extent of any presumption. If force is used in any other place than a dwelling, residence, or vehicle, it seems abundantly clear that the accused may not rely on the presumption that he/she held the reasonable belief. Once they are shown to or admit to doing the shooting, they have the burden of establishing justification.

Just my 2 cents.

[DesertFox5768]

Just an aside, but I'm really impressed at the discussion of this issue I have seen at various gun forums. Always mature, reasoned, empathetic discussion. A few of the right-leaning or libertarian sites I have visited feature a disturbing number of commentators that celebrate the incident, as if a shooting that resulted in the death of a teenager (and from the looks of it not a gang member or criminal) were a cause for celebration. Kudos to the gun crowd.

[Frank Ettin]

Originally Posted by TheKlawMan

I am not going to comment on the Martin shooting, since I know little or nothing about it, but I was aware of the Florida statute re The Castle Doctrine prior to the Martin shooting and had commented on the perceived problems with the statute....The sum and substance of my review was that the Florida statute gives rise to the presumption that a shooting was justifiable merely from the fact that a dwelling or a vehicle was unlawfully entered...

[1] Just to be clear, the Florida law does not create a presumption that use of lethal force was justified merely because of unlawful entry.

The Florida statute is quoted and linked to in posts 14 and 16. The presumption is that the defender had a reasonable fear of "imminent peril of death or great bodily harm." That is necessary, but not necessarily sufficient, for a use of force to be determined to be justified. For example, if the defender instigated or provoked the act, he would lose claim to justification.

In addition, the Florida statute sets out a number of circumstances under which the presumption would specifically not arise.

[2] You might be interested to know that California law, Penal Code 198.5, includes a similar presumption:

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred....

Originally Posted by TheKlawMan

...What really griped me about Florida's statute was its failure to provide whether the presumption was rebuttable or irrebuttable...

No reason it should. The general rule today is that a presumption is rebuttable. For a presumption to be conclusive, a statute or court decision would need to specifically and explicitly so provide.

[TheKlawMan]

Thank you for the lesson on California law. I have barely cracked a Crim book since school days, but this so happened to be one with which I had some small familiarity. Not much since the issue at bar is Florida law and when the state in question is clear on the law I find it best to argue governing law.

Turning to Florida law, I see that FS Section 90.301(2) provides that a presumption is rebuttable untless the law from which it arises expressly provides that it is conclusive.

Obvioulsly you have a good deal of trial experience and are well aware of how easy it is to refute the presumption beyond a reasonable doubt that the accused did not reasonably hold a fear of imminent death or harm . . . . In the hypo of the drunk passed out on the couch the prosecution may win, but it can be rather difficult from what I hear.

[Frank Ettin]

Originally Posted by TheKlawMan

Thank you for the lesson on California law. ...Not much since the issue at bar is Florida law...

The point is not California law or Florida law. The point is that this presumption, which seems to trouble you so much, is not unusual. It is a standard feature of Castle Doctrine and similar statutes.

Nor is such a presumption an especially new feature in "use of force" law. The California statute goes back to 1984.

Originally Posted by TheKlawMan

...Obvioulsly you have a good deal of trial experience and are well aware of how easy it is to refute the presumption beyond a reasonable doubt...

Well, I don't have trial experience. But, your sarcasm aside, I still seem to understand presumptions better than you. Until I pointed it out, you apparently weren't aware that presumptions were in fact generally rebuttable. And of course, how easy a presumption is to rebut in a particular case will depend on the exact circumstances and evidence available.

Indeed it's probably not unreasonable to conclude that, absent a clear and excruciatingly obvious indication to the contrary, someone who has unlawfully and forceably broken into your home intends you no good.

And you seemed perfectly happy with the presumption if it were rebuttable (post 30):

Originally Posted by TheKlawMan

...I tend to agree with that train of thought and believe that a shooter should be presumed to have feared imminent peril, as long as the presumption is rebuttable...

So now that you've learned that the resumption of 776.013 is rebuttable, you should be comfortable with the law.

[TheKlawMan]

Why am I not surpised that you have no trial experience. As for your knowledge of presumptions, they are something that I rarely dealt with and of which I admit to knowing little. I believe it has been nearly fifteen years since I had a serious presumption issue arise. I don't even remember exactly what the issue was or if I ever understood it, but I do remember winning the case. I do know it had nothing to with criminal law. Am I happy with the presumption in the Florida statute? The more I think of it, I just don't lilke it although I can't quite put together what bothers me so much about it.

[Frank Ettin]

Originally Posted by TheKlawMan

Why am I not surpised that you have no trial experience...

I guess it doesn't take a trial lawyer to have a general knowledge of the subject. In any case, as I've posted before, I practiced law for over 30 years before retiring at the age of 59. For almost 15 years leading up to my retirement, I was a senior lawyer and vice president of a Fortune 200 company. During my varied career by responsibilities included managing and controlling complex litigation and making tactical decisions with trial counsel.

Originally Posted by TheKlawMan

...Am I happy with the presumption in the Florida statute? The more I think of it, I just don't lilke it although I can't quite put together what bothers me so much about it...

So I guess you don't like Castle Doctrines as have been adopted in quite a few States now.

[Don P]

I deleted my post about what is being reported on our local news about the shooting for the fact of not wanting to be possibly banned.

[KyJim]

As I was glancing through the thread, I kept looking for mention of the "initial aggressor" limitation to the right of self-defense and its interplay with the "no duty to retreat" doctrine. I didn't see any in my scan through. I know it is a limitation in my state and in Florida (see below). I suspect it is in many states' penal codes because our penal code was based on the Model Penal Code.

The initial aggressor limitation essentially takes away the right to use self-defense and make the no duty to retreat doctrine moot if the suspect/defendant is the initial aggressor. It does take into consideration whether the initial aggressor backs off. There's an article about this on the Volokh Conspiracy. http://volokh.com/2012/03/24/lethal-...sor-exception/

[Frank Ettin]

Originally Posted by KyJim

As I was glancing through the thread, I kept looking for mention of the "initial aggressor" limitation to the right of self-defense and its interplay with the "no duty to retreat" doctrine....

An excellent point, and it kind of got lost. Here's the Florida version, 776.041:

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.

Originally Posted by KyJim

...The initial aggressor limitation essentially takes away the right to use self-defense and make the no duty to retreat doctrine moot if the suspect/defendant is the initial aggressor....

I agree.

[TheKlawMan]

How would you feel about Florida's Castle/Stand Your Ground Law if the presumption was conclusive, Frank Ettin?

I wonder if this post is going to disappear into cyber space like the one I thought I earlier posted. Basically, I merely noted that you appear to have had a fine legal education and I assume that you were a fine attorney.

[Frank Ettin]

Originally Posted by TheKlawMan

How would you feel about Florida's Castle/Stand Your Ground Law if the presumption was conclusive, Frank Ettin?

Your question is meaningless. The presumption is not conclusive.

Originally Posted by TheKlawMan

...I wonder if this post is going to disappear into cyber space like the one I thought I earlier posted. Basically, I merely noted that you appear to have had an fine legal education and I assume that you were a fine attorney.

Thank you, but that post had nothing to do with the subject of this thread and accordingly was deleted. We try to keep our threads reasonably focused.

[TheKlawMan]

In response to my asking,

How would you feel about Florida's Castle/Stand Your Ground Law if the presumption was conclusive, Frank Ettin?

You wrote that,

Your question is meaningless. The presumption is not conclusive.

Whether the Florida law is conclusive or rebuttable, I fail to see how my question was meaningless. Regardless, that the presumptions are rebuttable is less than clear. Just to cite two that disagree with your claim that the presumption is not conclusive:

According to the Senate Staff Analysis the presumptions in this section are absolute (ie: a “conclusive” presumption)1, and cannot be controverted or rebutted in a court of law.

Jon H. Gutmacher, Esq., Orlando Criminal Defense Attorney.

Legal presumptions are typically rebuttable. The presumptions created by the committee substitute, however, appear to be conclusive.

SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT
http://archive.flsenate.gov/data/ses...05s0436.ju.pdf

[Frank Ettin]

Originally Posted by TheKlawMan

...that the presumptions are rebuttable is less than clear. Just to cite two that disagree with your claim that the presumption is not conclusive:

Jon H. Gutmacher, Esq., Orlando Criminal Defense Attorney.

SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT
archive.flsenate.gov/data/session/2005/Senate/bills/analysis/pdf/2005s0436.ju.pdf

Hardly definitive. The Senate Staff Analysis merely states a bald conclusion without any statement of a basis or citation to any recognized or controlling authority. That's especially curious when the Senate Staff Analysis does cite case law in support of other contentions. Furthermore, the Senate Staff Analysis can not even arguably be considered evidence of legislative intent. The last page bears the legend:

This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or the Florida Senate.

And you also purport to quote, without any citation, a statement by a Florida attorney, not here present, who merely relies on the unsupported, bald, and equivocal statement in the Senate Staff Report.

This is starting to drift the thread off course and will not be continued.

[TheKlawMan]

If you really wanted the cite to Gutmacher, all you had to do was ask or do a quick google. If asked to decide the qustion of conclusiveness, I suggest that the courts will pay little attention to the boilerplate re not reflecting intent of the bill's author or the Senate. That is not to say the judiciary will not inquire into the basis of the analyst's opinion. If the court finds that the bill passed based on the analyst's statement of conclusiveness, the court may be inclined to rule aginst the presumptions' rebuttableness.

If you believe I have misrepresented Attorney Gutman's comment, read it for yourself at http://www.floridafirearmslaw.com/mm...Store_Code=FFL . Click on answer #1.

"purport to quote"? That you would accuse me of misrepresenting Gutman and in the next breath warn me away from rebutting your accusation is incredulous.
.

[Aguila Blanca]

Needless to say, this case is still in the news. According to today's "updates," Zimmerman's attorney thinks "Stand your ground" applies only in your house.

Mr. Zimmerman might want to rethink his choice of attorney.

And then this: http://www.cnn.com/2012/03/24/justic...html?hpt=ju_c2

The Sanford Police Department said officers were prohibited from arresting Zimmerman the night of the shooting because physical evidence and testimony supported his claim that he acted in self-defense in accordance with Florida law. The police department gave the explanation to City Manager Norton Bonaparte, who included it in a letter to the community about the case, posted on the city's website.

Maybe I'm reading the law wrong, but isn't the basic premise still that killing another person is unlawful, and that self-defense (with or without a duty to retreat) is an exception that must be claimed ... and proven? Isn't it incorrect to assert that the Sanford PD were "prohibited" from making an arrest because the evidence appeared to support a claim of self defense?

[ScottRiqui]

Maybe I'm reading the law wrong, but isn't the basic premise still that killing another person is unlawful, and that self-defense (with or without a duty to retreat) is an exception that must be claimed ... and proven?

That's the way it is here in Virginia. Any killing is automatically second-degree murder, and the state doesn't even have to present a case in order to get a conviction. If the district attorney wants to pursue a more serious charge, then they have to prove it. Likewise, if the defense wants to argue self-defense or other mitigating factors, then they have to make their case.

It's an interesting situation, because a necessary part of claiming self-defense is admitting that you did in fact shoot the other person. At that point, you've given the state enough for a second-degree murder conviction, and you have to "work yourself out of the hole" from that point.

[SilentScreams]

Well, I've been reading a lot on this particular law. And regardless of what your arguments are on either side, I believe fully as a living, hard working human being if you are in danger of your life being taken by someone else, it is not only your right, but your duty to ensure your own way of life. I firmly believe in live and let live, but when someone crosses that line, that oh so very fine line, I would not hesitate regardless of law. Even if that decision could maybe, possibly result in my imprisonment. After all, I'd know what the alternative was, and that's not less pleasant.

[Mello2u]

Aguila Blanca

Isn't it incorrect to assert that the Sanford PD were "prohibited" from making an arrest because the evidence appeared to support a claim of self defense?

If the facts which the police were able to uncover that night of the shooting "appeared to support a claim of self defense", then the police would have lacked probable cause to arrest for Florida's various homicides.

Should police arrest people when they lack probable cause? No.

[TheKlawMan]

So the evidence "appeared" to support a claim of self defense that night. What about all the time that passed since the day of the incident? To say it supported the defense of self defense "that night" implies that it no longer supports the defense.

[TheKlawMan]

Member Ignored my Warning.