Eric Holder denounces ‘stand your ground’ laws.

[steve4102]

In the uproar, no one seems to be making any sort of distinctions. Ask me, they are going after the entire notion of legal self-defense.

Legal self-defense with a firearm is more like it.

This attack on STG and Self-Defense with a firearm is a simple stepping stone to their ultimate goal, the repeal of the 2nd Amendment. Without the right to defend ones self and property there will be no need for the 2nd Amendment and the Right to Keep and Bear Arms.

[Dixie Gunsmithing]

The reason why they are being treated this way, is that some states wanted people to retreat, even inside their homes, before protecting themselves. Here, if they're trying to break down your door, you can shoot them through it. In another state, a young man was shot trying to come through a window, and they found him dead a block away, and castle law saved the homeowner from being charged (he didn't retreat). Stand your ground and castle law stands hand in hand.

[csmsss]

Legal self-defense with a firearm is more like it.

Remove the firearm, and effective self-defense is made essentially impossible to a vast segment of citizens.

[thallub]

In the uproar, no one seems to be making any sort of distinctions. Ask me, they are going after the entire notion of legal self-defense.

Bingo!!!

They are attacking folks who would use guns to protect themselves and their loved ones from the violent predators who prey on our society.

[Dixie Gunsmithing]

Remove the firearm, and effective self-defense is made essentially impossible to a vast segment of citizens.

Amen! Imagine the elderly or someone disabled trying to fight off an attacker, much less retreat?

[steve4102]

Remove the firearm, and effective self-defense is made essentially impossible to a vast segment of citizens.

True, but if we make self-defense illegal we can "remove the firearm".

[Tom Servo]

Is it y'alls understanding that SYG and Castle Doctrine laws are being treated as the same here?

It'll all be lumped together. The first aim will be to reinstate a very strict duty to retreat, possibly even in the home.

The second will be to switch things back to a point in which a self-defense plea is an affirmative defense.

[wayneinFL]

Before SYG was passed, wasn't self defense an affirmative defense in Florida? In other words, if you had a claim of self defense, wasn't the burden of proof on the defendant to prove it was self defense? That the standard wasn't reasonable doubt, but more likely than not (preponderance of evidence)? has that changed as a result of SYG?

[Evan Thomas]

The second will be to switch things back to a point in which a self-defense plea is an affirmative defense.

It's my understanding that in most places, it is an affirmative defense; and that's is as it should be, IMO. I find it appropriate that a person who claims self-defense should be required to substantiate that claim in court.

Florida's law is a glaring exception to that, insofar as it places the burden on the prosecution to prove beyond a reasonable doubt that a defendant's claim of self-defense isn't valid.

[Dixie Gunsmithing]

In Ohio, we are protected from suit after the incident.

Quote:

"(2) Recovery on a claim for relief in a tort action is barred to any person or the person's legal representative if the any of the following apply:

"(a) The person has been convicted of or has pleaded guilty to a felony, or to a misdemeanor that is an offense of violence, arising out of criminal conduct that was a proximate cause of the injury or loss for which relief is claimed in the tort action.

"(3) Division (b) The person engaged in conduct that, if prosecuted, would constitute a felony, a misdemeanor that is an offense of violence, an attempt to commit a felony, or an attempt to commit a misdemeanor that is an offense of violence and that conduct was a proximate cause of the injury or loss for which relief is claimed in the tort action, regardless of whether the person has been convicted of or pleaded guilty to or has been charged with committing the felony, the misdemeanor, or the attempt to commit the felony or misdemeanor.

"(c) The person suffered the injury or loss for which relief is claimed in the tort action as a proximate result of the victim of conduct that, if prosecuted, would constitute a felony, a misdemeanor that is an offense of violence, an attempt to commit a felony, or an attempt to commit a misdemeanor that is an offense of violence acting against the person in self-defense, defense of another, or defense of the victim's residence, regardless of whether the person has been convicted of or pleaded guilty to or has been charged with committing the felony, the misdemeanor, or the attempt to commit the felony or misdemeanor. Division (B)(2)(c) of this section does not apply if the person who suffered the injury or loss, at the time of the victim's act of self-defense, defense of another, or defense of residence, was an innocent bystander who had no connection with the underlying conduct that prompted the victim's exercise of self-defense, defense of another, or defense of residence.

"(3) Recovery against a victim of conduct that, if prosecuted, would constitute a felony, a misdemeanor that is an offense of violence, an attempt to commit a felony, or an attempt to commit a misdemeanor that is an offense of violence, on a claim for relief in a tort action is barred to any person or the person's legal representative if conduct the person engaged in against that victim was a proximate cause of the injury or loss for which relief is claimed in the tort action and that conduct, if prosecuted, would constitute a felony, a misdemeanor that is an offense of violence, an attempt to commit a felony, or an attempt to commit a misdemeanor that is an offense of violence, regardless of whether the person has been convicted of or pleaded guilty to or has been charged with committing the felony, the misdemeanor, or the attempt to commit the felony or misdemeanor."

Also,

"(B) For purposes of determining the potential liability of a person in a tort action related to the person's use of force alleged to be in self-defense, defense of another, or defense of the person's residence, if the person lawfully is in that person's residence, the person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and, if the person lawfully is an occupant of that person's vehicle or lawfully is an occupant in a vehicle owned by an immediate family member of the person, the person has no duty to retreat before using force in self-defense or defense of another."

End quote.

However, Ohio's stand your ground only counts in ones home, or automobile, and under castle law, which is tied to it in this way. Unless they have changed it, and I know nothing of it.

http://www.legislature.state.oh.us/b...?ID=127_SB_184

[Frank Ettin]

Originally Posted by Dixie Gunsmithing

In Ohio, we are protected from suit after the incident....

No, you are only protected when the circumstances giving raise to the protection have been established.

In other words, you can still be sued. You might need then to show with competent evidence that you are entitled to the protection afforded by the statute. If there is any dispute regarding your entitlement to that protection, the court will need to decide. That's what courts do.

Note that no immunity law is necessarily self executing. You can be sued, in which case you will need to claim immunity and produce evidence that you have satisfied the requirements for immunity.

[Glenn E. Meyer]

If this issue cannot be discussed without going over the Zimmerman trial, the thread will be closed.

[Dixie Gunsmithing]

Frank,

They might bring suit themselves, without stating all the facts in the suit, but their attorney should not do it, unless they lie to them about the facts behind it, and he is totally ignorant to it. That is because it barred the one who did it or for an attorney to try to collect damages, if they claimed an injury while committing the crimes listed. "Recovery on a claim for relief in a tort action is barred to any person or the person's legal representative if any of the following apply".

If he is deceased, then their immediate family can't gain anything, "injury or loss for which relief is claimed in the tort action, recovery against a victim of conduct that, if prosecuted..". (not prosecuted, but if prosecuted).

Nor, do they need to be found guilty, or even charged, "regardless of whether the person has been convicted of or pleaded guilty to or has been charged with committing the felony, the misdemeanor, or the attempt to commit the felony or misdemeanor."

Yes, they can try to sue, but it would be thrown out, and we are allowed to sue for the damages they did, ask for court costs, and or bring a counter-suit if needed. All it takes is the police report, if it even went that far, and I do not see any attorney foolish enough to sue, knowing they can't collect.

[Dixie Gunsmithing]

Glenn,

I tried to steer them that way from the beginning. I hope they might listen now. However, I'll try to state it again.

All,

Again, do not bring up the case in question, only about Holders remarks, and what he may plan to do. That is why I started this post, not about the case, as I carefully worded it to not mention it.

[Frank Ettin]

Originally Posted by Dixie Gunsmithing

They might bring suit themselves, without stating all the facts in the suit, but their attorney should not do it, unless they lie to them about the facts behind it, and he is totally ignorant to it. That is because it barred the one who did it or for an attorney to try to collect damages, if they claimed an injury while committing the crimes listed. "Recovery on a claim for relief in a tort action is barred to any person or the person's legal representative if any of the following apply"...

Sorry, but you simply don't understand how these things can work. You are not a lawyer. I am.

The operative phrase in your quote above from the law is (emphasis added):

...Recovery on a claim for relief in a tort action is barred to any person or the person's legal representative if any of the following apply...

If there is a dispute about whether "any of the following apply" that will be tested and resolved as part of the civil suit.

Originally Posted by Dixie Gunsmithing

...Yes, they can try to sue, but it would be thrown out, and we are allowed to sue for the damages they did, ask for court costs, and or bring a counter-suit if needed....

Swell. Of course if the guy you're suing has no money, which is likely, you'll get nothing even if you win.

Originally Posted by Dixie Gunsmithing

...All it takes is the police report,...

No. A police report is mere hearsay and can't be used as evidence for such a purpose.

For a thorough discussion of civil immunity, see here.

[Dixie Gunsmithing]

Frank,

I understand that one would have to prove what applies in a suit, but really, what attorney would take a case, knowing that they stood little chance of winning? You know yourself that they would have to lie to the attorney, and he would have to be blind to what happened, with it most likely being in the news.

A police report might be hearsay, but what proof do they have, as compared to the one they attacked? The homeowner can show pictures of what was broken, a medical report if they were attacked, even a vehicle torn up, and have neighbors as a witnesses, unless you live miles away from anyone. Anyone else within the house could be called as a witness. For the one attacked, it can be pretty easy to prove, if one had to. Or, like from your link, ask a "judge to invoke the civil immunity clause".

Oh, they might not be able to pay, but I would bring a counter suit as quick as they brought one, and ask for court costs plus payment for all damages, and I wouldn't be ashamed to place a lien, or garnish their wages if they were working, but of course, they would most likely be in jail, if not dead. Some of the robbers caught around here had some wealthy bank accounts.

[Frank Ettin]

Originally Posted by Dixie Gunsmithing

...but really, what attorney would take a case, knowing that they stood little chance of winning?...

Beats me. But your just assuming that the attorney will conclude, after a full investigation, that he has little chance of winning. Maybe many cases will be like that, but maybe there will be a case here or there that's not so clearly a bad case for the plaintiff. And some lawyers really are excellent plaintiff lawyers and can do a lot with relatively little. And some plaintiff lawyers have an exaggerated idea idea of their own skill.

The point is that one can't categorically, blithely assume he won't get sued.

Originally Posted by Dixie Gunsmithing

...A police report might be hearsay, but what proof do they have, as compared to the one they attacked?...

What do you think that means? What proof? You're making assumptions that may or may not be valid.

Originally Posted by Dixie Gunsmithing

...The homeowner can show pictures of what was broken, a medical report if they were attacked, even a vehicle torn up, and have neighbors as a witnesses, unless you live miles away from anyone. Anyone else within the house could be called as a witness. For the one attacked, it can be pretty easy to prove, if one had to...

How do you know there is any such physical evidence? How do you know there are witnesses. You're allowing your imagination to run away with you.

Sometimes there is physical evidence, and sometimes there is not. Sometimes there are witnesses, and sometimes not. Sometimes the witnesses say things helpful to one side, and sometimes they say things that are helpful to the other side. What physical evidence there is, whether there are witnesses and what the witnesses say will all depend. You can not make assumptions about these things.

You don't really know any of this. You're just making more assumptions.

Originally Posted by Dixie Gunsmithing

...Oh, they might not be able to pay, but I would bring a counter suit as quick as they brought one, and ask for court costs plus payment for all damages, and I wouldn't be ashamed to place a lien, or garnish their wages if they were working,...

But of course you can't know. Again, you can't make assumptions.

The bottom lines is that the statement:

Originally Posted by Dixie Gunsmithing

...we are protected from suit after the incident...

is simply not a true statement. The true statement would be: The person who has successfully used force in justified self defense has a very high level of protection against frivolous civil suits and has a number of advantages if he needs to defend against such a civil suit arising from the successful self defense incident.

[Jimro]

http://www.fdle.state.fl.us/Content/...ent-Crime.aspx

Florida's violent crime rate was falling before SYG, and continued to fall after SYG. According to the Tampa Bay Post, only 133 cases of SYG have come up since 2005, but their numbers are suspect because they are padding their numbers by at least the Zimmerman/Martin incident.

Since 2005, homicide has continually gone down as per 100,000 residents, even though the actual numbers of incidents per year have gone up and down during that time frame (the population is growing faster than the crime).

I am all for examining SYG laws in the light of actual "data" instead of "anecdote." Of course as states across the US opened up Concealed Carry violent crime has been on the downturn. So I see concealed carry as the bigger driver of crime reduction, and SYG as protection for concealed carry holders.

Jimro

[Dixie Gunsmithing]

Al,

Of course I'm making assumptions, as nothing has really happened here, but that could be the most likely scenario with the evidence, not necessarily, but it could be, as I think the homeowner would have more available true evidence than the home invader. What I am speaking about is what could happen, and the protection Ohio law gives one who has acted within the law when this happens, not that they can't be sued, as more than likely, a few would try it. Plus, to me, it would take a pretty unscrupulous attorney to bring suit for the invader, especially if they thought their client might be guilty, and to be honest, I have met a few that may do it.

Oh, I agree that somebody could set someone up, to come to their home and kill them, then claim a home invasion, but in what I am speaking of, is a hypothetically innocent person, one who was acting within the law, and nothing or nobody else. They are protected by Ohio law, from a suit for damages, even if a suit is filed, if any of this came about, and yes, the homeowner may have to prove their case. Plus, they are entitled to bring their own suit, and collect all the damages, court costs, and attorney fees the invaders action caused, as they have no similar protection.

The Wikipedia article on castle doctrine, probably sums it up better than I can, as you point out, I am no lawyer, I just understand what I've read.

Quote;

"In addition to providing a valid defense in criminal law, many laws implementing the Castle Doctrine, particularly those with a "Stand-Your-Ground clause," also have a clause which provides immunity from any civil lawsuits filed on behalf of the assailant (for damages/injuries resulting from the force used to stop them). Without this clause, an assailant could sue for medical bills, property damage, disability, and pain & suffering as a result of the injuries inflicted by the defender; or, if the force results in the assailant's death, his/her next-of-kin or estate could launch a wrongful death suit. Even if successfully rebutted, the defendant (the homeowner/defender) may still have to pay high legal costs leading up to the suit's dismissal. Without criminal/civil immunity, such civil action could be used as revenge against a lawfully-acting defender (who was, originally, the assailant's victim).

"Use of force in self-defense which causes damage or injuries to other, non-criminally-acting parties, may not be shielded from criminal or civil prosecution, however."

End quote.

http://en.wikipedia.org/wiki/Castle_doctrine

[wayneinFL]

Okay, let me try to clarify my question about stand your ground without mentioning the Z-word. I live in Florida, I am most familiar with FL law, and it's the first state that will get changed, so that's why I am using that state. This push for changes in SYG will affect me before it affects any of the rest if you.

I understand that in FL, the threshold is reasonable doubt, rather than a preponderance of evidence, even when self defense is used as an affirmative defense, and a SYG hearing is waived. Has this threshold changed as a part of SYG, this being the subject of a change in FL? Or has reasonable doubt always been the standard in FL?

[Frank Ettin]

Originally Posted by Dixie Gunsmithing

... The Wikipedia article on castle doctrine, probably sums it up better than I can, as you point out, I am no lawyer, I just understand what I've read.....

Yes, you're not a lawyer. Nor is Wikipedia necessarily an authoritative legal text.

On the other hand, the thread here on Civil Liability, Civil Immunity, and the Use of Force to which I originally linked in post 40 was written by someone with a known legal background and with the assistance and review of three lawyers familiar with the subject.

So the nature and scope of the protection afforded by civil immunity laws is as described in that thread and by me in my several posts here.

[Evan Thomas]

Originally Posted by WayneinFL

I understand that in FL, the threshold is reasonable doubt, rather than a preponderance of evidence, even when self defense is used as an affirmative defense, and a SYG hearing is waived. Has this threshold changed as a part of SYG, this being the subject of a change in FL? Or has reasonable doubt always been the standard in FL?

I don't know about "always," which is a pretty long time, but the current standard in Florida was in place before the "Stand Your Ground" law was enacted in 2005. In a case that predated the SYG law (I can't find the exact date, but the original trial took place before 2005), the 4th District Court ruled (Murray v. State, 2006) that a defendant only needed to offer some evidence supporting a claim of self-defense; once that was done, the burden was on the state to show beyond a reasonable doubt that the defendant did not act in self-defense.

In most jurisdictions, the burden is on the defendant to prove by a preponderance of the evidence that he/she acted in self-defense. This is a much lower standard than "beyond a reasonable doubt," but it still places the burden of proof on the defendant. In Florida, the state has to prove beyond a reasonable doubt that the defendant's claim is false.