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

[Uncle Billy]

Here's a link to an article in the New York Times yesterday (3/21/12). This post may not meet the mods decision to wait until more is known about the Florida incident, in which case this will disappear, but if this post survives it would be interesting to see what forum members think about what it says.

http://www.nytimes.com/roomfordebate...round-law-says

[alloy]

Having the bill's sponsor(Senator Peadon) suggest that it's not being correctly applied seems relevant, altho that's probobly not his call to make. I've also culled from various news reports that calling 911 and stating "I'm following him" has Zimmerman in some questionable territory.

Wasn't there of course, but I have a couple of doubts and hopefully the law survives without a damaging rewrite.
Seems like the issue is ballooning over the last few days.

[Uncle Billy]

The op ed writer claims that this law encourages vigilantism, which seems to me to be what he thinks using a gun to defend someone other than one's self is, such as one's family members, for example, or someone else without any defense against a deadly attack. Apparently he advocates narrowing the Florida law to an extent that excludes such defense of others no matter what the circumstances are, which goes too far IMO.

Given what the author and other Florida legislators have said it seems that the law was passed without a careful reading of what it says, leaving Mr. Zimmerman legal protection for what so far seems to have been an overreach of the intent, if not the wording, of the "Stand Your Ground" legislation.

One of the other "debaters" on that page writes that he thinks the "stand your ground" law is unnecessary- the pertinent issues are already addressed in previous legislation, which is an argument with some merit.

[Don P]

It made local and national news this morning. They stated the
"stand your ground law" should NOT apply BECAUSE Zimmerman allegedly pursued the victim and that statement came from a FL representative and for those who care he was a Republican

[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.

[Tom Servo]

The police have yet to arrest Zimmerman, apparently because Florida’s Stand Your Ground law entitled Zimmerman to use deadly force.

We're not so sure of that. The law allows for lethal force if "necessary to prevent imminent death or great bodily harm to himself or herself or another" or "to prevent the imminent commission of a forcible felony." Whether or not that was the case here will (and should) be weighed by a grand jury.

The law protects me if another party threatens harm, but nowhere in its text does it protect me if I initiate or escalate a situation to violence.

[sigcurious]

I would think allowing someone to pursue and instigate a confrontation to use deadly force is similar to allowing the use of deadly force on a fleeing person. Sure there are probably some instances where either is justified,(The minimart clerk who shot a guy in the leg while he tried to run out with her child comes to mind.) but in general there are probably few times where there is clear and articulable justification for deadly force in either circumstance.

I hope the LE and DA do a proper investigation,take this to trial and are able to present facts to a jury that will convict or clear Zimmerman. A conviction would set much needed precedent for the law's interpretation. Likewise I would hope if cleared through the process of a trial that it would be due to facts coming to light that are currently unknown(Although I can't imagine anything that could change appearance of it being completely unjustified).

Without a trial, it will for likely leave a grey area open in which similar cases could point to the lack of trial and ruling in this situation, as a de facto precedent.

[MLeake]

I had written a comment under one of the Orlando Sentinel articles about this, and later I emailed one of their staff columnists, Beth Kassab, about it.

Same argument as Tom Servo's, same argument as the FL (R) legislator's: "Stand Your Ground," and for that matter, basic self-defense protections, don't typically attach to scenarios where the shooter initiated the conflict.

Possible exceptions would include instances where two parties square off, then one says, "Sorry, I don't want to do this," and makes a concerted, obvious effort to disengage and retreat. That party might get back some right to self-defense. But generally, initiators, or mutual combatants, give up the right.

I pointed out to Ms Kassab that without a stand your ground law, how do we decide which exceptions to make? Should a woman have to attempt to outrun an armed rapist? Should a handicapped or elderly person be expected to evade a young attacker? If not, then why should anybody have to find out if he can outrun an assailant, or worse yet, a bullet?

I emailed Ms Kassab two days ago. She has not yet responded. If she does, I'll recap what she has to say.

But going back to the case in question:

Hard to see how Zimmerman would have been threatened if he had stayed in his vehicle, and not dismounted to follow Martin, particularly after the dispatcher advised him not to do so.

Recent articles indicate that 911 recordings, finally released, reveal the sound of Martin pleading for his life before the gunshot, and the pleas ending abruptly with the gunshot.

If that is true, I think Zimmerman is toast. While we are all not supposed to rush to judgement, I suspect this is a case that should be prosecuted.

[bumnote]

Having the bill's sponsor(Senator Peadon) suggest that it's not being correctly applied seems relevant

This is what I was thinking once this law was being dragged into the spotlight. IMO, this law was intended to help people to protect themselves in exactly the type of situation that kid found himself in.
If someone was walking home from a store and was approached by an armed individual running at them trying to detain them, with no legal authority to do so, and that person was shot and killed, then there'd be little argument over this FL law. It would have done what it was designed to do, allow a person to defend them self from an armed attacker.
I believe the police department is trying use this law to cover up their own mistakes in their initial investigation...not testing the man for drug and alcohol use, not speaking to all the witnesses or neighbors, not speaking to the girl on the phone with the boy when he was shot. Things they should have done regardless of who may or may not have been at fault. The law isn't broken, it's the players involved that are.
But that's just the way I see from the info I have to base an opinion on.

[Mello2u]

Uncle Billy

"Stand Your Ground" op ed in the NY Times 3/21
Here's a link to an article in the New York Times yesterday (3/21/12).
http://www.nytimes.com/roomfordebate...round-law-says

Having read the article linked above, I conclude it is poorly written as it makes unfounded assumptions and lacks logical conclusions based on fact.

It seems that this incident is at a stage where the facts are still being determined. The Florida law does not seem to be flawed. Depending upon the provable facts of this situation that need to be presented, we currently do not know enough to decide who was the aggressor.

Was there a size disparity?
Who was the aggressor?
If Zimmerman was following Trayvon Martin, how much distance was maintained?
Did Martin close the distance or did Zimmerman?
I don't know enough to ask all the right questions.

I assume that under Florida jurisprudence, someone charged with a homicide who claims self-defense has the burden to prove the use of deadly force was justified. I tried to find the text of the law, but was unsuccessful. I looked at all of the Title XLVI Cimes, Chapter 790 Weapons and Firearms and did not find it.

While this incident does raise questions, they are as yet still unanswered. I can not judge with such a lack of facts.

[Buzzcook]

my main question is, what standard does this law use?

Basically there's the "would a reasonable person fear for their life" and "the person using deadly force honestly feared for their life"

The second standard would make it more difficult to prosecute in this case. That seems to be the complaint I've read most frequently.

[Aguila Blanca]

Originally Posted by Uncle Billy

Given what the author and other Florida legislators have said it seems that the law was passed without a careful reading of what it says, leaving Mr. Zimmerman legal protection for what so far seems to have been an overreach of the intent, if not the wording, of the "Stand Your Ground" legislation.

Where does the Florida law make it legal to stalk someone, assault the person after the 9-1-1 dispatcher tells you to break off, and then claim sel defense when the teenager YOU ATTACKED starts whuppin' your butt?

I don't think the law says that. Here's the "stand your ground" paragraph:

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

...

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Originally Posted by Buzzcook

my main question is, what standard does this law use?

Basically there's the "would a reasonable person fear for their life" and "the person using deadly force honestly feared for their life"

Do not apply, because Zimmerman initiated the conflict.

"No duty to retreat" does not equal "Has a right to attack."

[Buzzcook]

I assume that under Florida jurisprudence, someone charged with a homicide who claims self-defense has the burden to prove the use of deadly force was justified.

That might not be something you should bet on. The burden of proof is always on the prosecution's side.
The shooter has the same rights as anyone else accused of a crime.

[Aguila Blanca]

Originally Posted by Buzzcook

That might not be something you should bet on. The burden of proof is always on the prosecution's side.
The shooter has the same rights as anyone else accused of a crime.

I disagree.

I believe under Florida law, as under (I think) the laws of all the states, homicide starts out as being a crime. As TFL member Fiddletown (a real, live attorney) has posted more than twice in other discussions, in order to invoke a self-defense justification, the defendant has to begin by admitting that he (or she) did commit a homicide. The burden then falls on the defendant to convince the jury that one of the exceptions to the "Thou shalt not kill" law applies. So the burden DOES fall on the defendant.

Here's the link to the full Florida law, for those who might care to read it: http://www.leg.state.fl.us/statutes/.../0776.013.html

I believe Mello2u has it correct.

[Mello2u]

Aguila Blanca,

Thanks for the link to the law.

[Frank Ettin]

Sigh!

This will be kind of long, but I think it's important. Too many people have extravagant and unrealistic expectations of Castle Doctrine/Stand Your Ground laws. People need to understand what they mean and how they work. They can help someone who has legitimately used force in self defense establish that his use of force was justified, but they are not "licenses to kill", "get out of jail free cards", or "commissions as a freelance vigilante."

I. How Pleading Self Defense Works

In general, if you're accused of a crime it's up to the State to prove your guilty beyond a reasonable doubt. But things work a little differently if you are pleading self defense.

Basically --

[1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.

[2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all elements necessary under the applicable law to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the less convincing your story, and your evidence, is, the easier it will be for the prosecutor to meet his rebuttal burden.

II. How a Castle Doctrine/Stand Your Ground Law Can Help

Since this particular case arose in Florida, we'll look specifically at Florida law. However, all the self defense/Castle Doctrine/Stand Your Ground laws I've looked at are pretty similar.

[1] In general, under Florida law the use of lethal force can be justified as provided in Title XLVI Florida Statutes, Section 776.012:

...a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

[2] So if you claim your use of lethal force in self defense was justified, you will at least need to put forth evidence that the requirements of 776.012 were satisfied.

[3] The Florida's Castle Doctrine/Stand You Ground law at Section 776.013 helps by providing, among other things:

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:...

[3] A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

[4] So you can establish that your use of lethal force was justified, thus satisfying 776.012, if --

1. You can show that
   
   
   1. The person you used force against was, "...in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will..."; and
      
      
   2. You, "...knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...."
   
   
2. None of the exceptions in 776.013(2) apply.

And if you can do that, you don't have to specifically establish that you believed, "...that such force is necessary to prevent imminent death or great bodily harm to himself or herself...."

[5] But note that you don't get the presumption automatically. You need to show that the conditions that create the presumption exist. That might be easier than showing a fear of imminent death or great bodily harm, but you still must do some work to establish your claim of justification.

[6] And in the law, any available presumption is rebuttable. That means that even though one may be entitled to the benefit of a presumption as to a certain fact, the other side may try to prove that fact is not actually true. So, for example, even if you might have been entitled to a presumption that you were reasonably in fear for your life, the prosecutor could put on evidence and try to show that under the particular circumstances, a reasonable person could not have been reasonably in fear for his life.

III. The Bottom Line

Every Castle Doctrine/Stand Your Ground law has conditions, in general similar to those under the Florida statute, that you will need to show have been satisfied in order to be protected under those laws.

[baccusboy]

Here is the original news video from the local news station where a witness describes what he saw:

http://www.youtube.com/watch?v=zEDBq...layer_embedded

You can look past the one-sided text and just watch the video. That may have some bearing on how arguments go about "Stand Your Ground" in this case.

[Carry_24/7]

I live in Florida, and do not believe this law is wrong.....I do however believe it is being improperly applied in this case., but that will ultimately be up to a judge to decide.

Based on what I've seen (so far), this was not a case of self-defense....this was a wanna-be cop acting on his own, creating his own law...and enforcing it with a loaded gun. No matter what he states, I believe most reasonable police officers would have made an arrest at the scene when they found a dead, unarmed 17 year old smaller kid vs. an older, armed and larger adult. Maybe they get released later, but the arrest at the scene would probably happen.

The Feds will have to step in on this one to ensure something gets done, as it appears the local and state will not.

If this stands, the justification for use of deadly force for self-defense just got seriously watered down....

[MLeake]

The Feds have stepped in. So has the state of Florida.

As of yesterday's Orlando Sentinel, the DOJ was conducting a parallel civil rights violations investigation, while the Florida Attorney General had ordered the Seminole County to have a Grand Jury hear the facts of the case.

Local PD and prosecutor have been partially bypassed.

[Tom Servo]

this was not a case of self-defense....this was a wanna-be cop acting on his own, creating his own law...and enforcing it with a loaded gun.

We don't know that. The facts are not in. Until then, speculation about the case itself is just that: speculation. We've closed several other threads along that line.

Stick with the parameters set by the OP.

[Aguila Blanca]

Originally Posted by MLeake

Local PD and prosecutor have been partially bypassed.

I thought both the local PD and the local prosecutor had officially stood down from the case.

[Spats McGee]

Originally Posted by fiddletown

Sigh! . . . .

I. How Pleading Self Defense Works . . . .

fiddletown, I really hope you have that saved as a document somewhere. It's long, but it's a very good explanation. I get the impression you've posted that before.

[ChuckS]

I haven't seen these sources posted that seem to corroborate self-defense interspersed with obvious media sensationalism:

miamiherald

....Mr. Zimmerman’s claim is that the confrontation was initiated by Trayvon,” Police Chief Bill Lee said in an interview. “I am not going into specifics of what led to the violent physical encounter witnessed by residents. All the physical evidence and testimony we have independent of what Mr. Zimmerman provides corroborates this claim to self-defense.”

To claim self-defense, someone has to show there was danger of great bodily harm or death, Lee said. “Zimmerman had injuries consistent with his story,” Lee said.

Zimmerman had a damp shirt, grass stains, a bloody nose and was bleeding from a wound in back of his head, according to police reports.

“If someone asks you, ‘Hey do you live here?’ is it OK for you to jump on them and beat the crap out of somebody?” Lee said. “It’s not.”

...[Mary}Cutcher originally gave police a statement that matched Zimmerman’s account, said police spokesman Sgt. David Morgenstern....

and another:
my fox orlando

"The guy on the bottom, who had a red sweater on, was yelling to me, 'Help! Help!' and I told him to stop, and I was calling 911," said the witness, who asked to be identified only by his first name, John.

John said he locked his patio door, ran upstairs and heard at least one gun shot.

"And then, when I got upstairs and looked down, the guy who was on the top beating up the other guy, was the one laying in the grass, and I believe he was dead at that point."

[C0untZer0]

I think where Zimmerman is going to have problems is here:

held a reasonable fear of imminent peril of death or great bodily harm to himself

If he did, then he would never have gotten out of his vehicle or he simply would have fled, especially considering that he knew police were on the way.
I think the prosecution will hit that pretty hard.

Probably his defense lawyer will claim that he didn't fear for his life until he was attacked by Trayvon Martin.

Personally I see a police department that doesn't seem to understand the law, I don't see how "stand your ground" Florida law covers it, and I think Zimmerman is going to have a hard sell to the Jury that this was justifiable homocide.

[brickeyee]

III. The Bottom Line

Every Castle Doctrine/Stand Your Ground law has conditions, in general similar to those under the Florida statute, that you will need to show have been satisfied in order to be protected under those laws.

THIS.

You must know and understand your state's (or cities, etc) laws.

And NOT just the statute law, but at least some of the case law.

Virginia has NO statute law covering lethal force (even for the police).

It is ALL CASE (common) law (and we have a whole lot of it), and it is VERY good).

The various state 'gun owner's guides' (Bloom press) are an excellent place to start.

I have multiple states that allow reciprocity for my permit.

There are just enough differences you need to be aware of them in each state (and maybe city) that you plan on carrying in.