Floridas "stand your ground law"

[Captain33036]

Can I repost the part of the SYG law, that Absinthe posted:

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.


This, to me, seems reasonable. It clearly states that if YOU provoke agression against yourself, this law is NOT available to you.

Except....if you believe you are in danger of "great bodily harm" ...."AND...you have "exhausted" "EVERY" reasonable means to escape such danger..."

And therein lies the gray area. It seems that in some of these cases, when the situation has devolved to a fight on the ground, the party who shoots claims that the law protects them, because when you are fighting on the ground, there is no means of escape.

The law does not seem to be a bad law. It seems that DA's are reluctant to examine the actual events, in some cases.

 

[JRH6856]

The law does not seem to be a bad law. It seems that DA's are reluctant to examine the actual events, in some cases.

It is apparently no secret that DAs and LEOs were strongly opposed to the law prior to its passage and have continued that opposition since. Sometimes the weakness of a law is exposed by its strict application. This appears to be what is behind the reluctance to investigate or press charges.

I say the law is a bad law precisely because it appears to create a gray area where it is unclear just how or if any law applies.

When the law provides no guidance, it becomes the province of the individual to determine on his own, the right course of action in a confrontation. In such situations, a useful guide is if you are armed, before confronting anyone, ask yourself: "Would I do this if I didn't have a gun?" if not, then don't do it.

 

[Captain33036]

I wrote:

This, to me, seems reasonable. It clearly states that if YOU provoke agression against yourself, this law is NOT available to you.

Except....if you believe you are in danger of "great bodily harm" ...."AND...you have "exhausted" "EVERY" reasonable means to escape such danger..."

And did call this a gray area, but, I think that was a poor choice of words. To me, the language is pretty clear. You have to meet two requirements:

- Reasonable belief of great bodily harm
- Exhausted every reasonable means of escape

I think the real issue is the DA. I am not a lawyer, but I believe that the above are the facts for a jury to decide. So, in cases where the facts are not clear, isn't that what the CJ system is supposed to do?

I am not sure the law needs to be tried with every unclear case. I think every unclear case should be tried under the law.

Best

J

 

[Carl N. Brown]

I suspect Martin may have been the one exercising a stand-your-ground stance.

But, if you are new to a neighborhood (especially a gated community) and one of the residents asks you "What are you doing here?" your response should be what? Stand your ground and beat them bloody, only to discover they are armed?

There's a lot of blame to spread around in this incident. Especially as bits and pieces arise that were left out of the initial reports in the media.

 

[Carl N. Brown]

Let's face it, the reason "Stand Your Ground" has become popular is the fact that the old "retreat til your back is against the wall" was abused by prosecution when people had actually made a good faith attempt to avoid the situation thrust on them by an attacker.

 

[rajb123]

Which states have SYG legislation in place? Is there a list on the Net?

 

[rajb123]

My friend recently retired in Seminole county FLorida. Since municiple finances are very limited, they have closed a few jails, let criminals go and reduced police and court budgets.

I would think the SYG legislation is, in part, a response to these events. Apparently, gun sales in that area of the country have increased significantly. I know one thing, he does not go out at night too often.

 

[JRH6856]

Which states have SYG legislation in place? Is there a list on the Net?

You might try a Google search. Or Wikipedia

 

[benEzra]

There is some conflation of SYG with the Castle Doctrine here; they are two separate things.

Castle Doctrine is a presumption of justifiability that occurs when the shooter is in her/his home or place of business (or, in FL, her/his vehicle) and the person shot was attempting to make an illegal forcible entry.

"Stand Your Ground" was a part of the law that repealed Florida's quirky duty-to-retreat-even-if-lethally-attacked statute. Florida used to be a real oddball among states in that you technically had to try to retreat even if you were in imminent danger of death, serious bodily harm, or a forcible felony from an illegal attack. Few otherwise-justified cases were ever prosecuted on this grounds, but some were, and it was a worry for those of us with CHL's.

The SYG provisions repealed that and brought Florida's duty-to-retreat into line with that of most other states. As long as you are not the aggressor, you do not have to run away from an attacker before trying to use countervailing force, but you may not use excessive force and SYG alone is not a presumption of justifiability.

In my opinion, the fact that the shooter apparently pursued the deceased and initiated the confrontation makes the SYG claim dubious. You are not "standing your ground" if you are chasing somebody down to initiate a confrontation, IMO.

MicroTecniqs, most states are no-duty-to-retreat. FL's SYG provision repealed an oddball duty-to-retreat that most states lacked.

 

[rajb123]

States with Stand Your Ground laws:

http://thelastword.msnbc.msn.com/_news/2012/03/21/10797253-states-with-stand-your-ground-laws

 

[Sam1911]

As long as you are not the aggressor, you do not have to run away from an attacker before trying to use countervailing force, but you may not use excessive force and SYG alone is not a presumption of justifiability.

The unfortunate argument brought to bear against the idea by the prosecutors and LE seems to be that if there is only one combatant left alive, and no witnesses to the contrary, the 'winner' always claims to have done nothing to instigate the confrontation and to have merely been attacked while going about his lawful business -- so they cannot bring a case against him. His word must be accepted and the killing declared self-defense.

Which sounds very bad, of course, when put in that context. "Any time there are two gang-bangers out killing each other, the one left alive walks away a free man 'cause we can't dispute his claim of self-defense."

On the other hand, the same basic statement could be said as, "Absent any evidence of law-breaking, he must go free." Which doesn't sound like a bad thing, IMHO.

Of course, guilty people who attack and kill others and manage to make it seem like a self-defense shooting sometimes do get away with it. But that would be true in any jurisdiction. I don't necessarily see that the FL law MUST be interpreted as to give law enforcement no ability to collect evidence and determine the facts of the case before deciding to let someone walk. But that seems to be what they're saying.

 

[JRH6856]

FL's SYG provision repealed an oddball duty-to-retreat that most states lacked.

And that odd-ball law was often used by antis as an example of a reasonaible and common-sense way to protect oneself without needing a gun.

 

[NavyLCDR]

I say the law is a bad law precisely because it appears to create a gray area where it is unclear just how or if any law applies.

The law removes gray areas.

Let's look at an example:

Before: Woman exits Wal Mart, starts to get in her car. When she opens the car door a bad guy comes at her from behind the vehicle, opens a switchblade knife and says, "Get out, get out." She shoots the bad guy and kills him.

Without stand your ground law, here is one of the HUGE the grey areas: could she have safely left the scene and allowed the criminal to take her car? Without stand your ground law that would be required for her to do if she could. She has her door open, one foot in the vehicle. Bad guy is 4 feet away from her with a knife telling her to get out. She would be required, by law, before SYG to take a step toward the bad guy, move around her open car door, and run away. Could she have done so safetly? AND it is not could she have done so safely at the scene...that does not really matter, could she convince a jury that she could NOT do so safely?

It would be up to her to prove to a jury that she could not do so with safety. What is the "prosecution" (against the woman) going to claim in court? "The 'victim' of the shooting was all the way at the back of her car when the 'victim' of the shooting told her to get out. All she had to do was leave. The 'victim' posed no 'real and credible' threat to her." Now the woman who defended herself against a switchblade weilding thug is in danger of being convicted of murder. Nice deal, eh?

After SYG: Now the huge grey area of whether the woman could flee or not is gone. Now thug pops out a switchblade knife, an illegal deadly weapon, and yells for the woman to get out. She shoots him. Now it is up to the "prosecution" (again against the woman) to prove that the thug who possessed a weapon deemed to be so deadly that it was made illegal did not pose a real and credible threat to the reasonable person. Most of the grey areas are eliminated.

 

[JRH6856]

I don't necessarily see that the FL law MUST be interpreted as to give law enforcement no ability to collect evidence and determine the facts of the case before deciding to let someone walk. But that seems to be what they're saying.

Exactly. And given the DA and LEO resistance to the law in the first place, it appears to be a tactic designed to generate public pressure for a repeal. A DA's job is so much easier when they can avoid a presumption of innocence.

 

[NavyLCDR]

And that odd-ball law was often used by antis as an example of a reasonaible and common-sense way to protect oneself without needing a gun.

So, you have a gun pointed at you by a bad guy and you think it is reasonable and common-sense for the victim of the crime to be required by law to stop and evaluate the situation to determine if a suitable escape route exists?!?

 

[rajb123]

To obtain a carry license you must not be a felon. How many gang-bangers can pass that test?

The Florida SYG law and its presumptions seem reasonable to me.

These laws are currently on the books in 21 states. Apparently, despite their general opposition from DAs and LEOs, the SYG laws seem to be working OK.

The tragic Florida case will likely become a landmark test case for SYG. Its too bad the media has forced the hands of the police, DA, federal government, etc. because the pressures seem politically motivated. Unfortunately, the media attempt to make all gun owners look like out-of-control vigilantis.

 

[NavyLCDR]

Exactly. And given the DA and LEO resistance to the law in the first place, it appears to be a tactic designed to generate public pressure for a repeal. A DA's job is so much easier when they can avoid a presumption of innocence.

You do understand that the SYG law only is applicable when someone kills another IN SELF DEFENSE! All the lack of a SYG law and the presence of a duty-to-retreat law does is enhance the ability of an anti-gun prosecutor to actually prosecute a person who has killed another IN SELF DEFENSE.

Oklahoma has a very strong SYG law and Castle Doctrine law. The strongest in the country. Remember that pharmacist who was convicted of 1st degree murder? The SYG law did not save him. Why? Because SYG law only comes into play AFTER the shooting has ALREADY been determined to be in SELF DEFENSE! If the shooting is determined to NOT be in self defense to begin with, SYG has nothing to do with it.

Stand Your Ground laws save the lives of those people attempting to defend themselves from attack because they no longer are required by law to waste precious seconds in evaluating if a safe escape route exists. It saves those people attempting to defend themselves from bankrupting defense fees associated with being required to prove that no safe escape route existed at the time that they were attacked.

Really, is the Brady Campaign and anti-gun groups kool aid so strong that we, as people who desire to protect ourselves with guns, must be overcome by their propaganda?

 

[Sam1911]

Navy, I think you guys are on the same page. Micro's not defending that point of view, seems to me.

"A DA's job is so much easier when they can avoid a presumption of innocence,
" reads to me as delivered with a raised eyebrow of disapproving irony.

 

[NavyLCDR]

Navy, I think you guys are on the same page. Micro's not defending that point of view, seems to me.

"A DA's job is so much easier when they can avoid a presumption of innocence,
" reads to me as delivered with a raised eyebrow of disapproving irony.

I was commenting based on this post by MicroTecniqs:

I say the law is a bad law precisely because it appears to create a gray area where it is unclear just how or if any law applies.

When the law provides no guidance, it becomes the province of the individual to determine on his own, the right course of action in a confrontation. In such situations, a useful guide is if you are armed, before confronting anyone, ask yourself: "Would I do this if I didn't have a gun?" if not, then don't do it.

The SYG law has nothing to do with justifying a CONFRONTATION. There is no ambiguity in the law in that area. The law only applies after a person has had a credible threat made against them of grave bodily harm or death. The law offers no justification for confrontation. We aren't, or shouldn't be, talking about confronting anyone. The law is only applicable to DEFENDING oneself!

 

[Sam1911]

Gotcha. I certainly agree with that.

 

[Captain33036]

Gentlemen

I am not sure that the statement that the SYG law has nothing to do with justifying a confrontation is correct.

The law has two parts essentially. The latter, as posted above, stipulates that even if you are the aggressor (and thus initiated a confrontation), you may apply the law if you meet two requirements (as pointed out above).

Just trying to help, if I missed something, I apologize.

Best

J

 

[Kleanbore]

All the lack of a SYG law and the presence of a duty-to-retreat law does is enhance the ability of an anti-gun prosecutor to actually prosecute a person who has killed another IN SELF DEFENSE.

Not to take issue at all, but to expand: some time ago, a mother in the state of Massachusetts used an antique gum ball machine to defend herself and her child against an intuder in her own home.

She was tried, prosecuted, and convicted because she had not attempted to retreat.

It had nothing to do with anything "anti gun".

The law in Massachusetts has since been changed to eliminate the duty to retreat within one's home.

The duty to retreat outside the home is not a matter of code. It stems from the common law, as it does in many other jurisdictions. Do not rely on an absence of a codified duty to retreat as indicating that the duty does not exist.

By the way, Massachusetts is one of those jurisdictions in which the burden is on the prosecution to prove beyond a reasonable doubt that a killing did not involve self defense.

This is a very good article that well addresses the duty to retreat and what the absence of such a duty really means.

 

[Sam1911]

J,

That is a worthwhile thing to point out. It does give some protection in cases such as I referenced in Post 19, where someone's big mouth (or bad choices) brought down on them deadly danger. It recognizes that -- even if you were unwise -- you still are not required to allow yourself to be assaulted and murdered for it.

So even if someone were (just for example) to confront a person walking in their neighborhood who they felt was acting suspiciously, s/he could still lawfully defend him- or herself if that suspicious character attacked him/her.

However, s/he may NOT "stand their ground" under those circumstances, but MUST have exhausted all avenues of retreat.

So, it is rather a "yes, but no" answer.

 

[Kleanbore]

The map shown in Post 84 is not really accurate, as it does not reflect case law.

 

[Kleanbore]

Posted by 9mmforMe: Just out of curiosity, what additional facts are we waiting for so we can discuss the non-discussable case? Does the moderator mean a verdict in a trial that may never even come to fruition?

Go to the link contained in Post #3. Read posts 4, 11, and 14 in that thread.

It seems we have a great deal of information at this point and that we are indeed discussing this case in veiled terms.

Posts of those who may have done that here are being removed. Those who had been discussing that in the referenced closed thread were not discussing facts, but indicating their attitudes in a discussion of speculative news reports, 911 calls that may or may not reflect the truth, and so on.

Let's cast off the facade and talk about what truly happened.

We will when we know "what truly happened".