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Old April 12, 2012, 02:03 PM   #7
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,775
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 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.
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
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