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Old April 29, 2012, 07:17 PM   #101
TheKlawMan
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It is a shame that some have to resort to ad hominem attacks and non-existent arguments. To do so only exposes the weakness of their case.

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First off, if we collectively agree that people should be made whole, but we also agree that it's not reasonable to hold a person liable who was trying to save his life or the lives of his family (assuming he wasn't reckless, etc), then we might want to find another means of making victims whole.
I see that you now exclude the reckless shooter from those whom should be entitled to full immunity. WHICH IS THE POINT I MADE when I wrote that,

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The innocent struck by an errant bullet should be allowed to state a case. This is especially true if the person seeking to claim immunity was reckless and not simply negligent.
Your ideas for setting up some other means of providing for the care of the innocent victim are not totally lacking in merit, but they smack of more big goverment and creeping socialism. I think you mean to convey that the armed and resaonable neighgor confers a public good on the community and I also see some merit in such.

Still, I am bothered by theallocation of cost away from the responsible party, especially where it results in a windfall profit for an insurer. I find much more acceptable a law limiting civil liability for mere negligence to available insurance proceeds. In reality, most plaintiffs are not about to go after one's personal assets and that goes for most plaintiff atttorneys.

The mechanics of how that works out are for beyond the scope of this thread.

If you wish to talk about responsible homeowners, over on the shotgun forum a common topic is home defense ammunition and selecting the best ammo for your individual circumstances. A principle concern of those in urban environments is over penetration of walls by errant shot. I believe my crude hypo involved shooting a full magazine of armored pearcing 7.65 mm rounds in the direction of your neighbor's back yard.
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Old April 29, 2012, 07:31 PM   #102
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Personal ethics and the law are often uncomfortable bedfellows -- it's one or the realties of our system. It will be a very wise man, indeed, who comes up with a different system where all parties are satisfied after disputes are resolved.

An attorney who takes advantage of a poorly written law to the benefit of his client may seem unethical to some. But, wouldn't it be unethical if he didn't use the law to the full advantage of his client? Before we brand them as ambulance chasing creatures, let's look to correcting the laws.
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Old April 29, 2012, 07:41 PM   #103
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The problem is that those creatures do exist, and that they can make things very miserable for folks.
So (our) legal system isn't perfect but no one has come up with a better sysem. MLeake thinks it just that the innocent victim of a shooter be reduced to begging for charity or that society assume the cost of providing care as opposed to placing the cost on the reckless shooter. I do think it may be just to limit the liability of someone who in good faith seeks to protect themselves and others. Except in the most extreme cases of wanton and malicious conduct, it might be reasonable to put some cap on damages similar to those for medical malpractice.

Last edited by TheKlawMan; April 29, 2012 at 08:31 PM.
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Old April 29, 2012, 08:12 PM   #104
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No, MLeake has said that current SYG laws don't protect "reckless" shooters, and that your basic argument is a straw man.

You are creating a condition that doesn't exist, in order to support an argument that most would find unpalatable if you didn't create that condition.

Please prove where SYG has been used to prevent an injured third party from suing a reckless or willfully negligent shooter. Any example would do.
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Old April 29, 2012, 08:48 PM   #105
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The protection from civil suit in Florida, Georgia, etc is based on the finding that the shooting was justifiable. That won't attach in the event that evidence indicates the shooter behaved recklessly or with willful negligence.
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Please prove where SYG has been used to prevent an injured third party from suing a reckless or willfully negligent shooter. Any example would do.
I am sorry but you seem bound to confuse too simple duties; that owed to a the BG invading your home and threatening you and your faily and the duty owed the innocent neighbor. The two are very different and the fact that you can't see that is difficult to follow.

Supposedly you know all about all the SYG laws. I admittedly do not. Hence, it is should be easy for you to come up with some examples of cases in which the innocent bystander was allowed to proceeed with their case against a shooter who was granted civil immunity under a SYG law. I imagine there may be some that have structured its state law so as not to deprive the innocent person of redress but I don't know of none. Regardless, I am talking about laws such as Florida's and I fail to see where it limits immunity to claims brought by the person threatening force.

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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).
The wording of the statute plainly provides balnket immunity from the claims of all but certain enumerated law enforcement officers.
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Old April 29, 2012, 09:36 PM   #106
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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
The Florida statute permits the use of force under specific circumstances against what might conveniently be referred to as a Bad Guy. Unfortunately, the use of force against a Bad Guy can sometimes result in the unintentional application of force against an innocent bystander. Since the statute does not authorize the use of force against an innocent bystander, it is difficult for me to see how the law could provide blanket immunity against liability for harm to the bystander. In short, I could envision a single incident resulting in two conclusions - justification and immunity with respect to defending against a Bad Guy, and negligence or recklessness resulting in liability with respect to harming an innocent bystander. Hopefully, our legal system will reach such nuanced conclusions in appropriate circumstances.
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Old April 29, 2012, 09:53 PM   #107
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The section you've cited deals with the fact of a defendant not being allowed to claim self-defense against a LEO who is in the performance of his duties.

It deals with people the shooter deliberately shoots.

Again, you are the one claiming the flaw exists in the system. The burden of proof is yours, TheKlawMan.
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Old April 29, 2012, 10:14 PM   #108
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Since the statute does not authorize the use of force against an innocent bystander, it is difficult for me to see how the law could provide blanket immunity against liability for harm to the bystander.
But the wording of the law seems to imply just that. It says, "any civil action brought by a plaintiff." It doesn't specify anything about whether or not the plaintiff was the instigator or an associate. The language is sloppy and it could be problematic.

Say I'm in a public place, and I'm minding my own business. Suddenly, Tom attacks Dick, and Dick fires in self-defense. Problem is, I'm just standing around being me, and one of Dick's shots hits me.

I'm to understand that getting shot is a very unpleasant experience, often leading to serious injury, loss of wages, medical expenses, and perhaps long-term disability. I didn't do anything to get myself into this, and Dick's actions, intentionally or not, have caused me tangible harm.

Would I not have the opportunity to seek recompense just because of the particular tool Dick used? How is this different than him hitting me with his car because he swerved to avoid a puppy in the road?

So, I go to court and I say, "Dick owes me for my pain and suffering. If he hadn't shot, I wouldn't be all full of leaky holes!" The judge says, "slow down, pilgrim. Law here in Florida says he can't be held accountable under the Stand Your Ground law. Shoulda gotten hit by the car instead."

I'm not a big-city lawyer, but I see a big problem there. There are certain defenses against totrious liability, and they are firmly established. Florida's SYG law, intentionally or not, adds its own novel defense.

Right now, that law (and others like it) is under the microscope, and there may be challenges to its overall validity.
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Old April 29, 2012, 10:23 PM   #109
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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
An excellent illustration of the lawmakers all understanding what they think they wrote, but nobody thinking about what happens when the defendee sprays the landscape with gunfire dropping the attacker and three innocent bystanders!
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Old April 29, 2012, 10:41 PM   #110
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I think the more apt traffic comparison, TS, would be you are walking down the road when a drunken, reckless driver speeds the wrong way up a one-way street, and runs other traffic off the road; one of the drivers who swerves to avoid the drunken wrong-way driver hits you.

Swerving to avoid a puppy would be understandable, but isn't a good comparison for most defensive shooting scenarios.

In the case described above, it would be a nasty situation, but what (if any) degree of fault would actually be assigned to the drivers who had been run off the road?
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Old April 29, 2012, 11:32 PM   #111
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I was being a teensy bit facetious in my analogy, but the underlying questions are these:
  • Is the language in Florida's law overly broad?
  • Would that language survive a legal challenge?

Take Georgia's version, for example:

Quote:
A person who is justified in threatening or using force against another (...) has no duty to retreat from the use of such force and shall not be held liable to the person against whom the use of force was justified or to any person acting as an accomplice or assistant to such person in any civil action brought as a result of the threat or use of such force.
That's fairly clear. However, Florida's law appears to exempt me from any liability, to anyone, incurred during a shooting if the shooting was done in self defense. A lot of folks are looking to tear that law apart, and this could give them the opening to do so.

And yeah, I'm sorry, but I own every bullet that I fire, regardless of intent.
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Old April 30, 2012, 12:08 AM   #112
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Morally, we all do.

Legally, it would be interesting to see where some would have the line drawn.

For instance, I'm sure most would be less upset about a (shooter) homeowner's policy being tasked to cover bills, than about a potential seizure of the homeowner's bank accounts and assets.

IE, should you be forced to sell your home and chattels due to a situation you did not create? (Again, assuming no true recklessness on your part.)

If so, are we saying it's ok that the shooter gets screwed by fate, but unacceptable that the third party does? And if that is what we are saying, why?

Also, if we think it's ok for insurance to cover such a scenario (which the insurance companies would deal with by raising rates, probably particularly against homeowners who have firearms), then would we think it's not ok for government to set up a victims of violence compensation policy? If not, why not? Either way, costs get spread out through a broader pool, rather than putting all the costs on the victim(s)... as the shooter in a defensive case is also a victim.

Last moral thought: Why do we provide good faith indemnity for LEOs, but think we should not do the same for a private citizen who is thrust into a bad and sudden situation?
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Old April 30, 2012, 01:19 AM   #113
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Tom Servo,

Is the language in Florida's law overly broad? The overly broad doctrine only applies where a law is drawn so that it punishes constitutionally protected rights along with conduct that the state may cponstitutionally regulate. SYG laws generally do not punish anything and but only regulate one's right to use deadly force. You may have a point, though, since by proscribing the right to use force the law proscribes the limits of criminal conduct.


Would that language survive a legal challenge? I think it would. I believe you may be thinking about the doctrine of vagueness. It goes something like a law which is so vague and ambiguous that it fails to give notice of what is proscribed is unenforeable since it violates the right of due process. I don't know if it is vague at all.

Vagueness means the wording of the law is so ambiguous that one cannot fairly understand its meaning. Laws are construed by their plain meaning and only if their plain meaning is vague and ambiguous will the courts look to construe them according to legislative intent, if intent can be ascertained. Unfortunately, Florida's SYG laws do not appear at all ambibiguous. Hence, the courts of Florida will apply them according to their stated language unless they are held to be unconstitutional.

Ambiguous doesn't mean that the law fails to reflect what the law makers meant to say. That is simply a poorly written law and if it is to be corrected the same lawmakers should do that. Until they do so, the law is to be applied as written.

I have seen arguments that the Florida immunity statute is unconstitutionally deprives an injured bystander of equal protection under the law since they are barred from suing the homeowner. I think the argument weak at best.
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Old April 30, 2012, 01:57 AM   #114
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Morally, we all do.

Legally, it would be interesting to see where some would have the line drawn.

For instance, I'm sure most would be less upset about a (shooter) homeowner's policy being tasked to cover bills, than about a potential seizure of the homeowner's bank accounts and assets.

IE, should you be forced to sell your home and chattels due to a situation you did not create? (Again, assuming no true recklessness on your part.) How can you say you didn't create a situation if you pointed the gun and pulled the trigger.
You had other options such as better doors and windows, a security system, security lighting, and etcetera. For that matter instead of armor pearcing rounds you could have selected a home a shotgun for home defense with shells that were far less likely to penetrate walls.


If so, are we saying it's ok that the shooter gets screwed by fate, but unacceptable that the third party does? And if that is what we are saying, why? We are not talking about where the shooter gets screwed by fate. Shooter would have no liability unless they were least negligent. Between the negligent shooter and the purely innocent person, the equities clearly lay with the innocent.

Also, if we think it's ok for insurance to cover such a scenario (which the insurance companies would deal with by raising rates, probably particularly against homeowners who have firearms), then would we think it's not ok for government to set up a victims of violence compensation policy? If not, why not? Either way, costs get spread out through a broader pool, rather than putting all the costs on the victim(s)... as the shooter in a defensive case is also a victim. Excuse me, but that doesn't make any sense. Supposedly the possession of firearms in the home deters crime and you have previously said how rarely a bustander is shot in a home defense scenario. Why then would insurer raise rates if you had a firearm. As is I have firearms, my state doesn't afford blanket immunity, and my insurance carrier doesn't ask if I have firearms. As for your victims pool idea, such funds exist are often a nightmare of govermental inefficiency. Private insurers are far more efficient.

Last moral thought: Why do we provide good faith indemnity for LEOs, but think we should not do the same for a private citizen who is thrust into a bad and sudden situation? I am not sure if you mean indemnity or immunity. A colleague handles those cases all the time, but we don't discuss them much. Simply put, if LEOs weren't given qualified immunity who would take the job. The same with indemifying an officer who acts in good faith.

I am glad you brought that one up. Many if not most cities provide that very indemnification through sophisticated kinds of insurance. If if it is structured so that an entity appears to be selof insured, if you get into the details they are only self insured to the extent of what one policy would call a deductible and they often have large excess liability policies.

If you still want to talk about cop immunity, I know of a recent shooting where the police fired into a medical office while attempting to capture armed robbers in an adjacent parking lot. The case hinged on whether or not the agency had a written procedure and if it was followed. If it wasn't, they lost their immunity.

If you are going to ask why there is no qualified immunity for homeowners, the state can provide it, which brings us bac to Florida. Should it is the question. I submit that without some kind of qualified immunity you cannot operate an efficient police department. Further, historically the government is immune.

Last edited by TheKlawMan; April 30, 2012 at 03:25 AM.
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Old April 30, 2012, 07:44 AM   #115
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How can I say you didn't create the situation if you pointed the gun and pulled the trigger? Easily. If there had been no threat, there would have been no weapon drawn, let alone trigger pulled. Morally, the bad guy created the situation.

Now you are bringing up whether the house has good locks, security systems, etc.

First, that just threw a whole bunch of new concepts into the argument.

Second, you assume the shooter has taken no steps to armor the home.

Third, do you think we should require people to spend money they may not have on such things, and hold them more liable if they don't? Massive impact on the poor, no? After all, a decent handgun runs $300+, a decent shotgun $200+. That's not even the cost of one decent exterior door. I'm not saying hardening the home is a bad idea, far from it, but it's not a minor expense, and may not be affordable for everybody.

Then you make your statement about shotguns, as though those are "more responsible."

Take it you haven't looked at ballistics charts with regard to the drywall penetration characteristics of tight patterns at close ranges, eh? They are up there with the stronger handgun rounds.

Go for a looser pattern, and now you are putting multiple projectiles downrange with each pull of the trigger. (Well, you were with the tigher patterns, too, but the odds of a given projectile or projectiles missing the target and traveling downrange were lower.)

A 5.56 carbine, with proper bullets, is actually safer. Yet some states make it difficult if not impossible to get the carbine, or the proper 5.56 ammo, or both.

With regard to insurance, if states start setting policies saying that self-defense victims specifically bear equal liability with the criminals they defended against, I would be surprised if the insurance companies didn't react in a way that would pose higher rates for firearm owners.

With regard to limited immunity, you have to balance the government's ability to recruit in there, true. But you have to balance that against the fact that private citizens, in good self-defense shootings, generally did not have a choice as to whether to be thrust into a threatening situation. If the private citizen helped create the situation in the first place, then SYG protections may not apply anyway.

You have still provided no instances where your theoretical situation has happened. You are the one claiming the law would be interpreted that way; the burden of proof is still on you. (Those arguing for changes to existing law bear the onus; standard debate rules.) Are you going to present any actual instances of this?
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Old April 30, 2012, 02:31 PM   #116
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It occurred to me this morning that the argument as to whether a homeowner had hardened the home had a couple of flaws:

1) This assumes the SD situation will occur at the home; and

2) Even more importantly, this is morally akin to saying the rape victim should not have worn that miniskirt.
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Old April 30, 2012, 02:49 PM   #117
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Mr. MLeave:

This is getting way off topic and I don't have all day discuss basic legal concepts. I will only respond to your last comment.

Quote:
You have still provided no instances where your theoretical situation has happened. You are the one claiming the law would be interpreted that way; the burden of proof is still on you. (Those arguing for changes to existing law bear the onus; standard debate rules.) Are you going to present any actual instances of this?
I have met my burden of proof by sorting out the basic laws of statutory discussion. My interpretaion merely follows the plain language of the statute.

In the real world you aren't going to find cases interpreting crystal clear statutes. That is all the more so when the issue fails to frequently arise and we are talking about a matter in a civil court.

I doubt that there has been more than 1,000 Florida SYG cases since the current laws passage in 2005. Of them ony a fractiion would involve injury to a bystander. Of those, the bystander wouldn't have a case unless the homeowner was at least negligent.

What happens if thoe few injured as a resuolt of neg go to an attorney. the attorney is going to read immunity provision and, unless they are very foolish, the inuries are severe, and the negligence egregious, pas on taking the case on a contingency. Sure, they might make a claim against the insurer but any that I represented would refuse to pay anything substantial. Most wouldn't even pay nuisance value.

Try finding any record of cases that are never even filed. Even if they are filed, trial court decisions aren't published since they have virtually no precedential value. It is possible that someone has mentioned ann obscur trial court case in a legal treatise on Florida law, but don't expect to find that in many libraries in this state.

Enjoy your burden of proof.
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Old April 30, 2012, 03:04 PM   #118
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I've already had to go on a spree of editing and deleting posts once in this thread. I'm not doing so again. I'll remind folks that attacks on other members, no matter how thinly veiled, are not acceptable under forum rules.
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