How Stand Your Ground Laws Protect the Innocent

[Frank Ettin]

Originally Posted by gc70

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

[1] This thread is discussing SYG laws in general, not just Florida's.

[2] The pre-trial motion on immunity seems to be a unique procedure under Florida's immunity law.

[3] The motion was apparently not granted.

[4] Immunity is not the same as SYG. Many States enacted immunity laws at the same time they enacted Castle Doctrine/Stand Your Ground Laws, but they are not the same thing. Castle Doctrine/Stand Your Ground Laws address the requirements for establishing justification. Immunity addresses the consequences of having successfully established justification.

[jimpeel]

Thank God I live in Colorado where I don't have to retreat and the "Make my day" law shelters me from prosecution for defending my home.

[gc70]

Back to the article.

When a criminal brandishes a weapon and says “Give me your money if you don’t want to get hurt,” there’s no ambiguity as to what is happening and the law is applicable. Outside of these types of scenarios the Stand Your Ground law does not apply.

That conclusion seems narrow.

[tipoc]

There is still some factual information missing here regarding why Ms. Alexander was convicted, but I think we can see why the SYG law would not apply.

According to the motion filed by her attorneys she felt threatened and left the house. At this point she could have called the cops, gotten help, etc. instead she returned to the house and a gun was fired as a threat, or warning. The jury did not believe that her returning to the house was needed and/or unavoidable. SYG did not apply.

tipoc

[hounddawg]

ok I am not a lawyer but as I read page 12 of this she was granted immunity from prosecution

http://www.scribd.com/doc/89763177/N...ion-to-Dismiss

Ok lawyer types what am I missing here?

I thought once this motion was granted there was no trial

[gc70]

hounddawg, the document was written by the defendant's attorneys in the hope that the judge would agree with its contents and sign it. The judge did not agree and did not sign the document. As such, the document is nothing more than the defense's discussion of their view of why self defense was justified.

[hounddawg]

ahh so that was why it was not signed and dated by the judge...thanks I was wondering exactly why that was

[Frank Ettin]

Originally Posted by gc70

...the document was written by the defendant's attorneys in the hope that the judge would agree with its contents and sign it. The judge did not agree and did not sign the document....

And give that man a cigar -- got it in one.

What we're looking at is a scan of the actual documents submitted to the court by the defendant's lawyer. It's a motion to dismiss, and it's based on the Florida immunity statute.

Whenever a lawyer files a motion in court (i. e., a request that that judge do something), it's SOP to include with the motion a copy of the order the lawyer is proposing that the judge sign. That both makes it clear exactly what the lawyer is asking for and saves the judge work. But the order isn't effective unless (1) the judge signs it; and (2) the clerk of the court stamps if and files it.

gc70 is absolutely correct. I just added to it because I'm naturally long winded and needed the exercise this morning.

[Frank Ettin]

Originally Posted by tipoc

...According to the motion filed by her attorneys she felt threatened and left the house. At this point she could have called the cops, gotten help, etc. instead she returned to the house and a gun was fired as a threat, or warning. The jury did not believe that her returning to the house was needed and/or unavoidable. SYG did not apply.

Thank you. At last someone has made a connection.

[gc70]

In another discussion, Bartholomew Roberts posted a link to an article on Stand Your Ground Laws. That article contained one pertinent tidbit about SYG laws that was stated more succinctly than I have seen anywhere else:

And fourth, it doesn't apply if you cannot retreat. If retreat is not an option, then the situation is governed by ordinary self-defense laws, not SYG laws.

[jimpeel]

The N.A.A.C.P. has now weighed in on the Marissa Alexander case in favor of the state's Stand Your Ground law.

SOURCE

NAACP weighs in on what they say is a "Stand Your Ground" case against Jacksonville woman
Woman faces 20 years in prison in Jacksonville case involving shooting
Posted: April 21, 2012 - 12:11am | Updated: April 21, 2012 - 2:53am

By Charles Broward

The NAACP’s Jacksonville chapter has thrown its support behind a woman who will be sentenced Monday in a shooting where she claimed self-defense against an abusive husband under the state’s Stand Your Ground law.

<MORE>

[Daugherty16]

Why, when you go to the garage to retrieve your handgun from the glovebox of your car, of course, so you can come back into the scene of the agression and shoot holes in the ceiling to show the aggressor how serious you are.

That is likely how prosecutors painted her trip to the garage. Regardless of who first started hitting on whom, leaving to go get a weapon and then coming back with your weapon and firing it, is generally something a jury would notice. I doubt she could erase that image from the juror's minds, and she seems to freely admit the facts, if not the intent. I would imagine that accounted for the 15 minute deliberation.

What seems out of whack is the potential sentence she faces, in a case with no injuries and apparently no intent to injure. That's a matter for the people and the legislature there to address, but it does outline the risk associated with mandatory sentences in borderline cases - those that get snared by the law but seem to fall outside the original intended scope of the law.

There's always clemency...

[TheKlawMan]

I am having trouble grasping why one shouldn't have a duty to utilize reasonable means of retreat before using deadly force. My primary reasoning is while the innocent person should have a right to be unmolested in a public place, I don't see where anyone should have he right to take a life if it can be easily avoided.

I see some merit in the argument that a person facong with imminent risk of death or grave injury may hesitate and lose their life shoud they have to think about if there is some available means of retreat, but what if the law only required one to use obvious avenues of retreat that didn't subject that person to further risk? I agree with the reasoning of the Santa Ana. CA court of appeal that one shouldn't have to retreat if by doing so they risk death or injury.

[Tom Servo]

what if the law only required one to use obvious avenues of retreat that didn't subject that person to further risk?

Because that could become a very subjective standard of measurement.

[TheKlawMan]

But laws frequently require the individual to be held to objective standards like what the reasonable man would do under the same circumstances. I am only asking about obvious and safe means of retreat. Say the bad guy just breaks in the front door but plainly is unarmed, while you are alone in the house on the second floor, armed to the teeth, sitting and watching television just five feet from the worlds best safe room. You live a block from a well manned efficient police station that your alarm system automatically notified and the police responded over the alarm system intercom that they are on there way with an ETA of under one minute. Assume that you are perfectly safe if you retreat to your safe room and it is perfectly obvious that during your retreat will not expose you to any risk. That may not be a very good hypo but I think you get the idea.

In such a situation why should anyone not have a duty to retreat before using deadly force?

[Bartholomew Roberts]

I see some merit in the argument that a person facong with imminent risk of death or grave injury may hesitate and lose their life shoud they have to think about if there is some available means of retreat, but what if the law only required one to use obvious avenues of retreat that didn't subject that person to further risk? I agree with the reasoning of the Santa Ana. CA court of appeal that one shouldn't have to retreat if by doing so they risk death or injury.

The problem that arises with duty to retreat laws is that a prosecutor and a jury get to spend hours deliberating a decision you had to make in seconds. We've seen in several of the videos how fast these situations develop, in many cases, the few seconds that a victim takes to realize they are in a life and death situation are all the time they ever get.

Many of these scenarios start and finish in less time than it would take you to say aloud "Is this a Stand Your Ground situation?" It is nice to know as a generally law-abiding citizen that you won't have to face the rest of your life in jail for shooting your potential murderer and not realizing there was a door behind you that the jury thinks you could have used.

Originally Posted by The Klaw Man

In such a situation why should anyone not have a duty to retreat before using deadly force?

A better question is why should someone sitting in their own home not doing anything to anybody have to be concerned about going to prison for trying to defend their home? How is law and order upheld by making this person go through extraordinary measures to preserve the life of the criminals that assaulted him?

[jimpeel]

Originally Posted by TheKlawMan

In such a situation why should anyone not have a duty to retreat before using deadly force?

Here in CO we not only have no duty to retreat; but we can shoot an intruder regardless of their armed status under our "Make my day" law. It doesn't matter if the guy is fully nude, we can put him down if he breaks into our home and we feel he is a threat to our lives or the lives of the other occupants of the home.

[TheKlawMan]

Bartholomew Roberts

I never meant to even hint that a good citizen should have to make a difficult decision under extreme pressure, but asked why they shouldn't be responsible in a situation where they simply choose to ignore a safe and obvious means of retreat.

One problem I ahve with some SYG laws is that everyone assumes the homeowner shot a bad guy; some criminal who's live wasn't worth much.

What about the youg kid that breaks in to steal lose change. I know of antother case where a homeless man only took socks to warm his cold feet. Those were intentional breakins. What of the accidental breaking and entering where the only force is what it took to open an unlocked door and push it open. Say someone living in your complex is confused having undkowinlgly just suffered a few TIAs and he mistakes your condo for his. Does he deserve death for accidentally entering the home of another?

[Tom Servo]

Does he deserve death for accidentally entering the home of another?

Possibly not, but does the home owner deserve injury or death because he's expected to wait until the intruder has presented an articulable threat?

[TheKlawMan]

Here in CO we not only have no duty to retreat; but we can shoot an intruder regardless of their armed status under our "Make my day" law. It doesn't matter if the guy is fully nude, we can put him down if he breaks into our home and we feel he is a threat to our lives or the lives of the other occupants of the home.

Jim Peel, This is the part of your law that I believe you are focused on.

18-1-704.5 Use Of Deadly Physical Force Against An Intruder ("Make My Day Law")

2. Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other
person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight,

Breaking that down we see that

Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person degree of physical force, including deadly physical force, against another person

- when that other person has made an unlawful entry into the dwelling, and

- when the occupant has a reasonable belief that such other
person
--- has committed a crime in the dwelling in addition to the uninvited entry, or i
--- s committing or intends to commit a crime against a person or property in addition to the uninvited entry,

- and when the occupant reasonably believes that such other person might use any physical force, no matter how slight

Your statment appears correct as far as it goes, but it doesn't it say that you need not fear for your life or the lives of others but only that physical force, no matter how slight, and a crime against property only will jsutify the taking of a life.

[oneounceload]

Klawman - I am afraid your living in CA has you somewhat befuddled on this....

If someone breaks in, I have NO duty to retreat from MY home so they can commit a crime, nor do I have to give up my car during a car-jacking or anything similar. I have the right to use deadly force, because in any of those events, I have to assume the interloper is about to do me harm if I do not comply

[TheKlawMan]

Tom Servos replied to whether an intruder deserve death for accidentally entering the home of another without any unlawful intent.

Possibly not, but does the home owner deserve injury or death because he's expected to wait until the intruder has presented an articulable threat?

I noted that the retreating home owner never risks death or injury.

Assume that you are perfectly safe if you retreat to your safe room and it is perfectly obvious that during your retreat will not expose(d) . . . to any risk.

If you think about it, the home owner who opts to use force increases the risk of death or great bodily harm to himself and others if they don't opt to retreat where the means of retreat guarantees their safety.

Change the hypo a bit. The accidental intruder in fact is legally carrying. Through his work with wounded warriors he has befriended many service people and is a crack shot. The home owner opting for force over retreats takes a shot and misses. The innocent intruder doesn't miss and scors a perfect dougle tap on home owner. Forget about what crime innocent intruder may have committed. I am not sure that he had the legal intent to commit a crime but that is not the issue.

[TheKlawMan]

Oneounce, I think if you read a bit closer you will notice that I am not talking about what the law grants one the right to do, but what a just law should permit.


My concern isn't responsible persons such as yourself and the few on this thread, but the likes of many mall ninjas who would seem to welcome the chance to blow someone away. While if that ever happens, I think they are mainly decent kids who will regret doing so, even if they had no choice but to shoot, (the eager beavers) don't need to be encouraged to bag their first human.

[Frank Ettin]

Originally Posted by oneounceload

Klawman - I am afraid your living in CA has you somewhat befuddled on this....

If someone breaks in, I have NO duty to retreat from MY home so they can commit a crime, nor do I have to give up my car during a car-jacking or anything similar. I have the right to use deadly force, because in any of those events, I have to assume the interloper is about to do me harm if I do not comply...

I'm afraid that you're the one who is befuddled. There is no duty to retreat in California, and you will be presumed to have a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household if someone has forcefully and unlawfully entered your home.

[TheKlawMan]

Frank, I am sure that oneounceload called me befuddled in good natrured jest, even if we have dirrerent views on things, and I beileve he is correct about the law of his jurisdiction. (And I am oftener than not befuddled.) When he says he has to assume I think he means he logically has to assume. I think you once corrected me that Florida law only gives rise to a rebuttable presumption of imminent peril as does California.

I am still undecided as to what I think abot FL SYG law. dpon't even get me started on Colorado law. I am grappling with how relatively easy it may be for someone to take a life and set up immuntiy form prosecution. On the other hand, I don't know that a homeowner should have to bear the stress and cost of a full blown trial to establish that they acted within the law.