How Stand Your Ground Laws Protect the Innocent

[Bartholomew Roberts]

A good article from the CATO Institute explaining how "Stand Your Ground" laws help protect the innocent as well as explaining why they aren't at all relevant to the Trayvon Martin shooting (despite claims by some to the contrary).

http://www.cato-at-liberty.org/stand...nd-laws-contd/

I know I have had this discussion with a lot of people lately who aren't all that well informed on self-defense law. I thought it likely others were having the same discussion and could appreciate a good article on those points.

[CowTowner]

Many thanks for this one, Sir.

[SPEMack618]

A big thank you, Sir. Shared that one on the Fraternity's message boards as well.

[ChuckS]

Many thanks for the article link. But it does raise more questions for me (a non-lawyer). If you'll school me on some of the finer points, please.

But I fail to see

why they aren't at all relevant to the Trayvon Martin shooting (despite claims by some to the contrary).

The writer gives three reasons for in-applicability, the first and last I will concede but the middle one I question:

Second, we know from the recorded 911 call that Zimmerman was not under attack when he initially encountered Martin.

I believe the author is basing his assumptions that were given in the last paragraph:

1) ...disregard the police dispatcher's statement...not to follow
2) ...Zimmerman's provocation
3) ...non-deadly force (fisticuffs)

Which leads me to my questions:
Is criminal activity AND attack both necessary to invoke applicability?

When does "following" become "provocation?"

Since the "initial" encounter wasn't an attack does that preclude any defense for a later violent attack? Which means to me that once I become close enough and speak to the perp that I cannot "stand my ground" I need to already have recognized my predicament and retreated or at least not engaged/spoken to him?

Is "fisticuffs" a reasonable response to someone following you?

I do know "fisticuffs" can be deadly. Does it require a trial and jury to define what a reasonable person response to fisticuffs is in every case?

Since this is all based on some very bad reporting, conjecture and even misinformation from the media can anyone except a lawyer with the pertinent [as yet unavailable] information be able to even say it's not applicable?

Lastly, one purported advantage to stand your ground is freedom from civil liability. Since Zimmerman is now charged can he be sued (civilly) and if he should be aquitted will he be once again protected? or do just having the charges brought remove all civil protection (forever)?

Hopefully, I'm not testing your patience with all these questions.

[Tom Servo]

ChuckS, there's a thread in Tactics & Training you can check out that covers some of the logistical issues.

As far as legal issues, the author is correct.

Is criminal activity AND attack both necessary to invoke applicability?

No, but the law allows intervention in the case of a forcible felony. Jaywalking or trespassing don't allow for the use of lethal force.

I do know "fisticuffs" can be deadly. Does it require a trial and jury to define what a reasonable person response to fisticuffs is in every case?

I have a friend who's an expert in several martial arts. He's testified in a couple of lethal force cases that yes, fisticuffs can be deadly, and that lethal force can be a rightful defense in some cases.

It'll be different from situation to situation. An NFL linebacker probably won't be as threatened by a guy my size swinging his fists, but if the situation were reversed, I'd probably have a valid argument that lethal force was justified.

Nonetheless, we'd need a jury to determine that. Homicide, justified or not, always merits scrutiny.

[gc70]

Originally Posted by ChuckS

Lastly, one purported advantage to stand your ground is freedom from civil liability. Since Zimmerman is now charged can he be sued (civilly) and if he should be aquitted will he be once again protected? or do just having the charges brought remove all civil protection (forever)?

SYG laws provide the possibility of immunity from criminal and civil action. SYG immunity must be requested by an individual and it is granted by a court - if a judge is convinced that it is warranted after an evidentiary hearing. If a judge grants SYG immunity, any pending and future criminal and civil actions will be dismissed by the courts.

[Frank Ettin]

Originally Posted by ChuckS

...Is criminal activity AND attack both necessary to invoke applicability?...

Basically, yes. We need to understand that Castle Doctrine/Stand Your Ground Laws are extremely narrow.

The original rule was that before using force in self defense, one had a duty to retreat if he could do so in complete safety. And this generally did not apply in your home, because your home was your place of refuges; and no one should be able to force you to leave your place of refuges. Of course, the duty to retreat reflected the core societal value that intentionally hurting another human was inherently repugnant, and resort to violence was to be avoided when possible.

The real idea behind SYG is to avoid having to deal with a dispute about whether one could have safely retreated. That could often be a tough question. A difficult side question would be whether the actor, in the heat of the moment during a rapidly unfolding and dangerous emergent situation could even have been reasonably expected to have been aware of an available means of escape.

BUT, all the SYG law does is relieve one of the obligation to retreat. In order for someone to establish that his resort to violence was justifiable self defense, he must still show that all other legal requirements necessary to justify his intentionally hurting or killing another human have been met.

Originally Posted by ChuckS

...When does "following" become "provocation?"...

That will depend on exactly what happened. It may very well be up to a jury to decide based on all the evidence offered by both sides at trial.

Originally Posted by ChuckS

...Since the "initial" encounter wasn't an attack does that preclude any defense for a later violent attack? Which means to me that once I become close enough and speak to the perp that I cannot "stand my ground" I need to already have recognized my predicament and retreated or at least not engaged/spoken to him?...

First, he's not a "perp" until he's actually done something. Just walking around where he has a right to be doesn't make him a "perp."

Second, whether an initial encounter is or is not reasonably perceived by one as an "attack" will depend on exactly how the person initiating the encounter conducts himself. There are ways in which you could approach someone and speak to someone that might reasonably lead him to believe that he is being attacked or about to be attacked. And that might justify his standing his ground and defending himself with appropriate force. The instigator must then essentially use every means to escape and avoid using force before he can defend himself.

Here's the applicable Florida law:

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.

The laws of other States are pretty similar.

Originally Posted by ChuckS

...one purported advantage to stand your ground is freedom from civil liability...

Originally Posted by gc70

SYG laws provide the possibility of immunity from criminal and civil action....

This is not correct.

Castle Doctrine/Stand Your Ground Laws are completely separate from Immunity Laws. It's probably the case that most States which have in recent years enacted Castle Doctrine/Stand Your Ground Laws also enacted Immunity Laws at the same time. But they are still different matters.

It is correct that an Immunity Law can not be considered a "free ride." Every Immunity Law sets out various conditions that must be satisfied in order for immunity to attach. If there is a dispute about whether those conditions have been satisfied, you'll still wind up in court to work that out.

Originally Posted by gc70

...if a judge is convinced that it is warranted after an evidentiary hearing....

A separate evidentiary hearing on the immunity question is thus far a procedure unique to Florida. We'll have to see how other States with Immunity Laws decide to handle the question.

[Buzzcook]

(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.

So if I initiate a conflict and then decide I made a mistake, I can then shoot the person I attacked if they don't back off as well?

http://www.tampabay.com/news/publics...-point/1222930

"There is not an exception to the law that says if you're doing something stupid, or risky, or not in your best interest, that 'stand your ground' doesn't apply," Romine said.

An example of stupid and risky

Nine days after Trayvon Martin was shot dead in Sanford, Brandon Baker, 30, and his twin brother were driving separate cars toward the apartment they shared in Palm Harbor.

Seth Browning, a 23-year-old security guard who later told deputies he was concerned with Baker's erratic driving, pulled in close behind Baker to get his license tag number.

Baker turned off East Lake Road, then onto an access road and came to a stop, according to Pinellas sheriff's investigators. Browning followed and stopped behind Baker's Chevy truck.

Baker climbed out of his truck and walked to Browning's window. His brother, Chris, watching from behind, said Baker was trying to figure out why Browning was tailgating him.

Browning sprayed Baker with pepper spray, then shot him in the chest. He told deputies that Baker had punched him and he was in fear for his life. Browning called police as Chris Baker tried to revive his brother.

His father, Kevin Lindsay, rushed to the scene and watched as Browning was questioned at length. Then he learned the man who killed his son was released.

Baker's parents had never heard of the "stand your ground" law. Waiting for some type of action has exhausted them. They long for justice in what appears to them to be a clearly unjustifiable killing.

"I always knew that the law would protect you if somebody broke into your home. Sure, you can protect yourself," said his stepmother, Alex Lindsay. "But why did they have to expand it to protect people who do things like this?"

Should we judge a law on the intent of its drafters, or on the effects it has once put in use?

[Frank Ettin]

Originally Posted by Buzzcook

So if I initiate a conflict and then decide I made a mistake, I can then shoot the person I attacked if they don't back off as well?

Read again the part of the statute you quoted. You've paraphrased it inaccurately. It just doesn't say what you suggest.

1. To reacquire a right to use force in self defense,
   
   
   • An instigator must (1) withdraw from physical contact; and (2) clearly indicate his desire to withdraw and terminate the use of force.
     
     
   • The assailant must continue or resume his use of force.
   
   
2. It's probably going to be up to a jury to decide, based on the totality of the evidence, if the instigator really did withdraw from physical contact and really was clear enough that he was terminating the use of force. A jury might very well take some serious convincing to buy those claims.
   
   
3. In any case, to respond to the assailant with deadly force, the usual rules continue to apply and the assailants attack must be reasonably capable of causing death or grave bodily injury.

[rburch]

So if I initiate a conflict and then decide I made a mistake, I can then shoot the person I attacked if they don't back off as well?

Only if their actions are putting your life in danger.

Stand your ground doesn't let you shoot anyone who attacks you, it just says you don't have to retreat before fighting back.

If I were to walk up to you and punch you in the nose, but then find out you're a much better fighter than me, and clearly try to stop the fight.

Your right to self defense has ended. I am no longer a threat to you.

If you continue to attack me, you have become the aggressor, and after retreating as far as I can, I now have the right to use force to defend myself.

Even then I can't just shoot you. Your actions have to make me feel I'm about to be killed before I can use deadly force.

[gc70]

Originally Posted by Frank Ettin

A separate evidentiary hearing on the immunity question is thus far a procedure unique to Florida. We'll have to see how other States with Immunity Laws decide to handle the question.

Immunity cannot be self-executing; absent a process defined by statute, the courts are the only source of authority to dismiss criminal and civil actions.

[Frank Ettin]

Originally Posted by gc70

Immunity cannot be self-executing; absent a process defined by statute, the courts are the only source of authority to dismiss criminal and civil actions.

Sigh! I wish you had read my post more carefully.

Of course immunity is not self-executing. That's why I wrote (post 7):

Originally Posted by Frank Ettin

...Every Immunity Law sets out various conditions that must be satisfied in order for immunity to attach. If there is a dispute about whether those conditions have been satisfied, you'll still wind up in court to work that out...

If there's no dispute about whether the conditions giving rise to immunity have been satisfied, no one is going to bother pursuing it.

However, the evidentiary hearing appears thus far to be unique to Florida procedure based on a Florida Supreme Court decision, Dennis v. State, 51 So.3d 456 (Fla., 2010):

...We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue....

The appellate court decision referred to in Dennis, Peterson v. State, 983 So.2d 27 (Fla. App., 2008) ruled:

Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...

As far as I know, no other State with an Immunity Law has thus far established that particular procedure. There are other ways the matter could be handled. It could for example be reserved to be dealt with at trial. In Dennis, while the Florida Supreme Court adopted the Peterson approach, it affirmed Dennis' conviction at trial. In its analysis, the Florida Supreme Court noted that Dennis was still able to fully present his self defense claim at trial.

[gc70]

Sigh! back to you Frank. All I meant was that courts will have to sort out disputes (no specific process suggested) if the legislature doesn't define a process.

[Frank Ettin]

Originally Posted by gc70

...All I meant was that courts will have to sort out disputes (no specific process suggested) if the legislature doesn't define a process.

And I agree with that.

[wally626]

Stand your ground doesn't let you shoot anyone who attacks you, it just says you don't have to retreat before fighting back.

If I were to walk up to you and punch you in the nose, but then find out you're a much better fighter than me, and clearly try to stop the fight.

Your right to self defense has ended. I am no longer a threat to you.

If you continue to attack me, you have become the aggressor, and after retreating as far as I can, I now have the right to use force to defend myself.

Even then I can't just shoot you. Your actions have to make me feel I'm about to be killed before I can use deadly force.
__________________

In VA based on common law this would also be the case if you initiate the dispute or jointly escalate an argument. You will have to stop fighting, retreat if possible, make it clear to the the other party that you do not wish to continue the fight. If they then escalate to the use of deadly force you can respond with deadly force.

If this happens you better really hope there are plenty of friendly witnesses to the fact you sued for peace prior to using deadly force. The standard was adopted as a response to the action of persons starting fights they knew they could win, escalating things to deadly force, then killing their opponent, then claiming self defense.

[mayosligo]

In regards to the "following" issue here and to use the Martin Zimmerman case, have they ever determined whether the call was made in the car and he then exited? Or was he calling from outside the car and the incident took place on the way back to the car? This is important because there is a difference between coming out of your house to chase an intruder and going back in after checking out a noise outside.

[Tom Servo]

In regards to the "following" issue here and to use the Martin Zimmerman case, have they ever determined whether the call was made in the car and he then exited?

We don't know what happened in that case, and it may be a while before all the facts are in. As such, we are not discussing or speculating on the details of the Zimmerman case.

[tipoc]

Thank you Mr. Roberts for posting the pieced from the CATO Institute.

The SYG laws are widely misunderstood it seems. The misunderstanding covers both detractors and supporters of the laws. Even the name is misleading as those involved still have an obligation to "retreat", withdraw or avoid the confrontation. If the confrontation develops into a physical one they still have an obligation to seek to end it short of death.

The defensive concept of shooting to stop aggression rather than shooting to kill still applies.

If your actions provoke an encounter the law may not see self defense no matter who threw the first punch.

tipoc

[jimpeel]

Stand your ground laws can also ensnare the innocent.

This woman was being choked and threatened by her ex-husband, who had a restraining order against him, so she fired a shot into the ceiling to scare him off. She has been convicted for standing her ground. She is facing 25 years in prison.

The irony is that the same prosecutor who is prosecuting George Zimmerman is the same prosecutor who prosecuted and convicted her.

The ex recanted his false charge that she tried to kill him and the children yet the prosecution continued and she was convicted.

You can learn more on Marissa's case No:2010-CF-8579

Division:CR-G by clicking link below:

CBS Jacksonville News 47

SOURCE

...

On August 1, 2010, when the alleged incident occured, Marissa said she was about to leave her abusive husband when he confronted her in the bathroom and began to choke her. She wrote that she ran but while in the garage she realized she couldn't open the garage doors because of a mechanical failure and she had also forgotten her phone and keys. Trapped, she allegedly went back to retrieve them, thinking he had already left because he was on his way out with her two stepsons.

Again, according to Marissa, he did not leave but came back minus the children and shouted, "Bitch, I will kill you!" She said he charged towards her, so she took out the gun she had taken from her truck and fired a warning shot towards the ceiling. Her husband supposely ran away then and called the police.

...

<MORE>

[Frank Ettin]

Originally Posted by jimpeel

Stand your ground laws can also ensnare the innocent.

This woman was being choked and threatened by her ex-husband, who had a restraining order against him, so she fired a shot into the ceiling to scare him off. She has been convicted for standing her ground. She is facing 25 years in prison....

[1] I'm curious why this case suggests that SYG laws can ensnare the innocent. The source material is short on hard facts and long on editorial comment, so I wonder exactly how the prosecution advanced its theory in court and how the defense handled things.

[2] I also wonder how this would have turned out differently under the prior law.

[3] But in any case, this illustrates that a SYG law is not a "get out of jail free" card.

[jimpeel]

Apparently, the ex told the PD that she tried to kill him and his two children. He has since recanted that story. How someone is trying to kill you by firing into the ceiling is beyond me -- unless, of course, you are standing on the roof.

He had a restraining order on him but was still in her home. Her fault? His fault? Who knows?

Perhaps if she had planted one CoM the story would be different. For now, she is convicted of 3 counts of aggravated assault with a deadly weapon with no intent to harm. I have never heard of that type of charge; but why would the penalty for a crime where no harm was intended be so harsh?

The part of the story which I found curious was this:

Prosecutors based their charges on the premise that Marissa could have retreated through a back door or window if she felt trapped by her husband.

Yet that is exactly what the SYG laws are supposed to take care of.

I am getting the feeling that this prosecutor does not like the SYG law and is going to prosecute anyway.

I did find the case HERE but it doesn't tell a lot. It does show that this case has dragged on since the arrest on 8/2/2010. There is a login. Type "public" in both the login and password spaces.

There are interesting details such as a year later there was a motion to revoke bond - denied; but another motion was granted and she was remanded to jail. There was also a home monitoring system, ankle bracelet, ordered at one point.

The jury must have wanted to go home because they were in and out in thirteen minutes flat.

3/16/2012 JURY IN: 5:12; JURY OUT: 5:25
3/16/2012 1 VERDICT- GUILTY
3/16/2012 2 VERDICT- GUILTY
3/16/2012 3 VERDICT- GUILTY

[Frank Ettin]

Originally Posted by jimpeel

...I did find the case HERE [showcase.duvalclerk.com] but it doesn't tell a lot....

No, it doesn't. It's just docket entries showing what was happening procedurally.

The bottom line is that we have no decent information about this matter, and it would be speculation and a complete waste of time to try to draw any meaningful conclusions from the limited information we have.

[jimpeel]

Is thirteen minutes a record for jury deliberations?

[Frank Ettin]

Originally Posted by jimpeel

Is thirteen minutes a record for jury deliberations?

Perhaps. And it tells us three things:

1. Whatever the prosecution's theory of the case was, the jury bought it completely and liked it.
   
   
2. Whatever the defense theory was, the jury didn't buy it at all.
   
   
3. We can infer absolutely nothing about SYG laws from this result.

And now we need to put this aside and get back to the topic of this thread.

[gc70]

The case of Marissa Alexander does provide an example of a Motion for Immunity and to Dismiss based on Florida's SYG law.