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Author Topic: Florida Stand-Your-Ground Law isn't that controversial, is it?  (Read 1315 times)

jack24

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The media seems to be blowing this all out of proportion.  Even Bill O'reilly said the law was weird.  I'm not really commenting on the specific Martin tragedy.  I'm focusing more on the actual law and the media reaction.

It seems to me that the law is a normal common-law(ish) self defense doctrine, that eliminates the duty to retreat.   It's the same doctrine that many states allow for people in their home. 
If I'm walking to my car and a guy hits me with a baseball bat in the back, knocking me down, do I have to get up, turn my back, and run away if I can?  What if I determine that I have a 40% chance of getting hit with the bat again?  Does that mean I can shoot him with my concealed weapon whether a "stand your ground" law applies or not?

In order to win on self defense in Florida, you still have to demonstrate that there was a reasonable apprehension of force and your return force has to be proportionate.   It's just that if a guy is going to try to beat you with a baseball bat, you don't have to try to run before you can shoot him.

Julie Fern

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #1 on: April 17, 2012, 10:13:34 AM »
what it say, exactly?

sollicitus

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #2 on: April 17, 2012, 10:21:32 AM »
True moral of story: Only kill your own kind. Otherwise if a Hispanic Jew they will call you "whitie" and try to lynch you. (Hitler must be a laughing his A-off in hell over that)

Julie Fern

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #3 on: April 24, 2012, 02:31:44 AM »
julie suspect you spend fair amount of time thinking about ol' adolf.

sollicitus

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #4 on: April 24, 2012, 02:38:54 PM »
thanks for the info....  i really owe you guys.

for what, you need to kill someone?

scholarchic

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #5 on: April 28, 2012, 04:44:12 PM »
Please note that the stand your ground law would not apply in the Martin case, as Zimmerman pursued Martin. Everyone is entitled to a defense, but the primary tenet of self-defense is unprovoked attack, thus the defense would not be available to Zimmerman. The law itself does need to be revised, however, especially the "reasonable belief"  standard that shifts the burden to prosecutors to disprove reasonableness, as usually the only person able to dispute what defendant says is dead. It allows for the perfect murder. Also applying the law to "any place you have a right to be" is horribly vague as the public has the right to be many places. It removes the responsibly of every person to exercise caution, and caters to those who actually go looking for trouble. Legislators also need to specify that immunity from criminal prosecution does not kick in without evidence to back up what you say.

HolmesBoy

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #6 on: April 28, 2012, 09:39:44 PM »
It's controversial for two reasons. First, it provides that a person who uses deadly physical force under the circumstances where he believes it is necessary to prevent imminent death or great bodily harm, is immune from criminal prosecution and any civil action for the use of that force. Second, the immunity provision and the determination of whether it applies, is not to be decided by the jury, but rather, it is to be decided by the court before any criminal prosecution can proceed.

jack24

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #7 on: April 30, 2012, 12:39:48 PM »
It's controversial for two reasons. First, it provides that a person who uses deadly physical force under the circumstances where he believes it is necessary to prevent imminent death or great bodily harm, is immune from criminal prosecution and any civil action for the use of that force. Second, the immunity provision and the determination of whether it applies, is not to be decided by the jury, but rather, it is to be decided by the court before any criminal prosecution can proceed.

I'm too lazy today to research that, HolmesBoy, but I can't believe what you are saying is entirely accurate.  Are you telling me that the Judge becomes the finder of fact to a larger extent than any other probable cause hearing or motion to suppress? 
Technically, the officer's can't even arrest someone if they should be "immune" under the statute.   But as you can see in (2) below, the standard is probable cause.   So the officers, and the Judge (I assume) will be doing a probable cause evaluation on the use of force, which they would do in almost any case.
I'm sincerely curious if I'm missing a distinction here.
In states that have preliminary hearings, the judge on felony cases will make a determination on whether there is probable cause supporting the continuation of the proceeding.  If a man swings a bat in his home which comes in contact with his wife's face, it will be the judge, not the jury, who will determine initially whether the prosecution can proceed by deciding whether there is probably cause that this contact was intentionally, therefore meeting the elements of a crime.  The judge in that case could say, "there is no evidence that this act was intentional.  In fact, the evidence shows the man didn't even know the wife was in the room and this was a total accident."

Here, the judge can say there is no probable cause that this guy acted without sufficient justification.  Double Jeopardy wouldn't attach though.  The prosecutor could collect more evidence and recharge. 

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).


Julie Fern

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #8 on: May 01, 2012, 08:24:37 AM »
presumably belief need use deadly force must be "reasonable."  if not, that certainly major change.

"reasonable" as to what, though?  that not "like someone's looks?"  someone "may be violent?"  necessary protect self or others from harm?  necessary protect self or others from serious injury?

presumably that text in other statutes referenced.  anyone got their text?

FalconJimmy

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Re: Florida Stand-Your-Ground Law isn't that controversial, is it?
« Reply #9 on: May 01, 2012, 10:12:14 AM »
I think we're going to need to see a lot more case-law and a lot more legislative tweaking before we know the full impact of these castle doctrine laws.

For instance, in Ohio, the main case on point is Kozlowski.  In the notes for that case:


Under the “Castle Doctrine,” a person attempting to expel or expelling another is allowed to use deadly force or force great enough to cause serious bodily harm; there is no duty to retreat inside one's home. State v. Kozlosky (Ohio App. 8 Dist., 09-22-2011) 2011 -Ohio- 4814, 2011 WL 4389951. ;

The “Castle Doctrine” creates a rebuttable presumption that a defendant acted in self-defense when attempting to expel or expelling another from his home who is unlawfully present, and the burden to prove that the charged individual was not acting in self-defense falls on the state. State v. Kozlosky (Ohio App. 8 Dist., 09-22-2011) 2011 -Ohio- 4814, 2011 WL 4389951. ;


Defendant's testimony established that he had a bona fide belief that he was in imminent danger of death or great bodily harm at hands of intruder in his home and that only means of escape was use of force, raising rebuttable presumption, under Castle Doctrine, that he acted in self-defense when he shot intruder, and his murder conviction was against manifest weight of evidence; before intruder entered defendant's home third time without permission and against protestations, and physically attacked upstairs tenant, defendant had learned that intruder had killed a man and had been convicted of carrying a concealed weapon, and defendant personally observed intruder's violent behavior towards tenant. State v. Kozlosky (Ohio App. 8 Dist., 09-22-2011) 2011 -Ohio- 4814, 2011 WL 4389951. ;


So, to me that says you have no duty to retreat and you have a "rebuttable presumption" of being in the right.

Basically, my understanding is:  no duty to retreat.  You are PRESUMED to be right, but the state can rebut.

Unfortunately, people in these parts basically think this means you can shoot anybody who enters your home.  Given that I'm in law school, I think of hypotheticals such as:

A 9 year old is lost in your neighborhood.  Thinks that your home is the home of a friend of his.  Is crying and distraught.  Walks to your front door which is unlocked.  Walks in thinking it is the home of his friend.  You shoot the 9 year old to death. 

Does anybody honestly think the state won't rebut that presumption in a case like this?

I don't think the castle doctrine, or FL's stand your ground are controversial in and of themselves.  What's controversial is that now a bunch of idiots think they can go around shooting everybody. 

I mean, unless Trevon Martin was screaming, "I'm gonna find me a white woman to rape!", then nobody had any business accosting him just because he was walking down the street.  Provoking a confrontation, then resolving it with deadly force, doesn't seem to be the type of activity that should be protected by the law.