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

[Frank Ettin]

How would you feel about Florida's Castle/Stand Your Ground Law if the presumption was conclusive, Frank Ettin?

Your question is meaningless. The presumption is not conclusive.

...I wonder if this post is going to disappear into cyber space like the one I thought I earlier posted. Basically, I merely noted that you appear to have had an fine legal education and I assume that you were a fine attorney.

Thank you, but that post had nothing to do with the subject of this thread and accordingly was deleted. We try to keep our threads reasonably focused.

 

[TheKlawMan]

FL Senate Staff Analysis Finds Presumptions Conclusive

In response to my asking,

How would you feel about Florida's Castle/Stand Your Ground Law if the presumption was conclusive, Frank Ettin?

You wrote that,

Your question is meaningless. The presumption is not conclusive.

Whether the Florida law is conclusive or rebuttable, I fail to see how my question was meaningless. Regardless, that the presumptions are rebuttable is less than clear. Just to cite two that disagree with your claim that the presumption is not conclusive:

According to the Senate Staff Analysis the presumptions in this section are absolute (ie: a “conclusive” presumption)1, and cannot be controverted or rebutted in a court of law.

Jon H. Gutmacher, Esq., Orlando Criminal Defense Attorney.

Legal presumptions are typically rebuttable. The presumptions created by the committee substitute, however, appear to be conclusive.

SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT
http://archive.flsenate.gov/data/session/2005/Senate/bills/analysis/pdf/2005s0436.ju.pdf

 

[Frank Ettin]

...that the presumptions are rebuttable is less than clear. Just to cite two that disagree with your claim that the presumption is not conclusive:

According to the Senate Staff Analysis the presumptions in this section are absolute (ie: a “conclusive” presumption)1, and cannot be controverted or rebutted in a court of law.

Jon H. Gutmacher, Esq., Orlando Criminal Defense Attorney.

Legal presumptions are typically rebuttable. The presumptions created by the committee substitute, however, appear to be conclusive

SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT
archive.flsenate.gov/data/session/2005/Senate/bills/analysis/pdf/2005s0436.ju.pdf

Hardly definitive. The Senate Staff Analysis merely states a bald conclusion without any statement of a basis or citation to any recognized or controlling authority. That's especially curious when the Senate Staff Analysis does cite case law in support of other contentions. Furthermore, the Senate Staff Analysis can not even arguably be considered evidence of legislative intent. The last page bears the legend:

This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or the Florida Senate.

And you also purport to quote, without any citation, a statement by a Florida attorney, not here present, who merely relies on the unsupported, bald, and equivocal statement in the Senate Staff Report.

This is starting to drift the thread off course and will not be continued.

 

[TheKlawMan]

If you really wanted the cite to Gutmacher, all you had to do was ask or do a quick google. If asked to decide the qustion of conclusiveness, I suggest that the courts will pay little attention to the boilerplate re not reflecting intent of the bill's author or the Senate. That is not to say the judiciary will not inquire into the basis of the analyst's opinion. If the court finds that the bill passed based on the analyst's statement of conclusiveness, the court may be inclined to rule aginst the presumptions' rebuttableness.

If you believe I have misrepresented Attorney Gutman's comment, read it for yourself at http://www.floridafirearmslaw.com/m...gal-Frequently-Asked-Questions&Store_Code=FFL . Click on answer #1.

"purport to quote"? That you would accuse me of misrepresenting Gutman and in the next breath warn me away from rebutting your accusation is incredulous.
.

 

[Aguila Blanca]

Needless to say, this case is still in the news. According to today's "updates," Zimmerman's attorney thinks "Stand your ground" applies only in your house.

Mr. Zimmerman might want to rethink his choice of attorney.

And then this: http://www.cnn.com/2012/03/24/justice/florida-teen-shooting/index.html?hpt=ju_c2

The Sanford Police Department said officers were prohibited from arresting Zimmerman the night of the shooting because physical evidence and testimony supported his claim that he acted in self-defense in accordance with Florida law. The police department gave the explanation to City Manager Norton Bonaparte, who included it in a letter to the community about the case, posted on the city's website.

Maybe I'm reading the law wrong, but isn't the basic premise still that killing another person is unlawful, and that self-defense (with or without a duty to retreat) is an exception that must be claimed ... and proven? Isn't it incorrect to assert that the Sanford PD were "prohibited" from making an arrest because the evidence appeared to support a claim of self defense?

 

[ScottRiqui]

Maybe I'm reading the law wrong, but isn't the basic premise still that killing another person is unlawful, and that self-defense (with or without a duty to retreat) is an exception that must be claimed ... and proven?

That's the way it is here in Virginia. Any killing is automatically second-degree murder, and the state doesn't even have to present a case in order to get a conviction. If the district attorney wants to pursue a more serious charge, then they have to prove it. Likewise, if the defense wants to argue self-defense or other mitigating factors, then they have to make their case.

It's an interesting situation, because a necessary part of claiming self-defense is admitting that you did in fact shoot the other person. At that point, you've given the state enough for a second-degree murder conviction, and you have to "work yourself out of the hole" from that point.

 

[SilentScreams]

Well, I've been reading a lot on this particular law. And regardless of what your arguments are on either side, I believe fully as a living, hard working human being if you are in danger of your life being taken by someone else, it is not only your right, but your duty to ensure your own way of life. I firmly believe in live and let live, but when someone crosses that line, that oh so very fine line, I would not hesitate regardless of law. Even if that decision could maybe, possibly result in my imprisonment. After all, I'd know what the alternative was, and that's not less pleasant.

 

[Mello2u]

Aguila Blanca

Isn't it incorrect to assert that the Sanford PD were "prohibited" from making an arrest because the evidence appeared to support a claim of self defense?

If the facts which the police were able to uncover that night of the shooting "appeared to support a claim of self defense", then the police would have lacked probable cause to arrest for Florida's various homicides.

Should police arrest people when they lack probable cause? No.

 

[TheKlawMan]

So the evidence "appeared" to support a claim of self defense that night. What about all the time that passed since the day of the incident? To say it supported the defense of self defense "that night" implies that it no longer supports the defense.

 

[TheKlawMan]

Member Ignored my Warning.

 

[Frank Ettin]

...Maybe I'm reading the law wrong, but isn't the basic premise still that killing another person is unlawful, and that self-defense (with or without a duty to retreat) is an exception that must be claimed ...

There is a unique wrinkle in Florida law, however.

As the laws of a number of States now do, Florida law provides for immunity from criminal prosecution and from civil suit for someone who uses force in justified self defense. See 776.032:

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

The difficulty is that there will always be some threshold questions to be decided before it can be determined whether or not immunity applies. Immunity only applies when the use of force meets all the legal requirements for justification.

In Florida, as provided under 776.032, that would mean that the defendant's use of force was, "...as permitted in s. 776.012, s. 776.013, or s. 776.031..."; and each of those statutes has conditions that must be satisfied for there to be a finding of justification. If the DA agrees that someone's use of force was justified, that would resolve at least the criminal side of things.

Issues, however, arise when the DA thinks someone's use of force was not justified. If there is that fundamental disagreement, there needs to be a way to resolve it. Ordinarily, that would be done at a trial, as described above, in post 16, under "I. How Pleading Self Defense Works." Florida has established a slightly different procedure.

In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida ruled:

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue.

And in Peterson v. State, 983 So.2d 27 (Fla. App., 2008), referred to by the Florida Supreme Court, the appellate court ruled:

Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...

Based on these seminal Florida court decisions, if a defendant is charged with a crime (or, it would appear, sued) based on a use of force, and if the defendant claims justification as his defense, instead of raising self defense as an affirmative defense at trial --

1. The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and
   
   
2. The court would hold an evidentiary hearing on the motion; and
   
   
3. The defendant at that hearing would need to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.
   
   
4. Should the court deny the motion, it appears from certain language in Peterson that he would still be able to raise self defense as an affirmative defense at trial.

...in Virginia. Any killing is automatically second-degree murder, and the state doesn't even have to present a case in order to get a conviction...

I think you must have misunderstood something. I'd very much like to know where your belief in that regard comes from. A citation would be welcome.

Were that the case, there would be some major problems under Due Process and it would be completely inconsistent with the Presumption of Innocence so firmly embedded in our criminal law.

 

[Carry_24/7]

Frank; no argument about immunity for a justified self defense shooting, as it should be.

I believe the problem comes from proof your shooting is justified.

How about a police officer? Can someone ambush a cop, shoot him in the head, call 911 and state the officer threatened him unjustifiably, that he felt his life was in danger? On the scene there's no witnesses, no video, just signs of a struggle between the two.... Should the shooter be arrested and taken before a judge, or released at the scene since there's little evidence other than what's previously stated? The dead cop can't talk and the shooter claims self-defense.....

What ya think?

 

[hogdogs]

Carry, It would seem that your line of thinking hasn't come to fruition enuff to be an issue in Fla as of yet.

I just do not here about shootings that later were found to "set ups" to use SD as grounds.

Things the defendant has to articulate is what did he fear that the others in society would fear? At what point in conflict did def. determine use of force was needed and why that point in time.

If the def. acted sooner or harsher than a typical person, why? What was the "disparity of force" that made the def. feel more threatened or sooner than a "typical" person...

For instance, as a kid I was always smallest in each grade I attended. If I needed to defend myself I had to unleash a fury and immediately gain the upper hand 'cuz if this scrap went on long, the heavier taller opponent would easily gain the upper hand.

Now that I have a screwed up "strong side" left arm and numerous other "old injuries", I simply cannot physically defend myself against most any determined adult... Heck... Most of our wives could whoop me if they really wanted to...

I just ain't willing to find out how easily I break in half...

Brent

 

[shortwave]

I believe the problem comes from proof your shooting is justified.

How about a police officer?

Carry,

With respect, it always intrigues me as to why some have the idea that murdering a police officer is somehow worse then murdering anyone else.
Your stated 'police officer' scenario should be investigated, facts gathered and if need be, prosecuted the same as any other shooting.
Course, I also feel the penalty for proven murder should be extreme, no plea bargaining, no immunity and the penalty applied across the board for whomever the murderer or victim was. No exceptions. Sadly, we have people in this country sitting in prisons doing more time for traficking in marijuana then murder....that's another discussion.

IMO, what it boils down to in any SD shooting is the fact that 'the shooter has to prove he/she is justified in the shooting'. This is nothing new. Has been that way as long as I can remember and I don't know of any new laws changing that fact.

 

[SilentScreams]

With respect, it always intrigues me as to why some have the idea that murdering a police officer is somehow worse then murdering anyone else.
Your stated 'police officer' scenario should be investigated, facts gathered and if need be, prosecuted the same as any other shooting.
Course, I also feel the penalty for proven murder should be extreme, no plea bargaining, no immunity and the penalty applied across the board for whomever the murderer or victim was. No exceptions. Sadly, we have people in this country sitting in prisons doing more time for traficking in marijuana then murder....that's another discussion.

It is generally treated as any other case and investigated as such. However, the social stigma surrounding it is a bit more intense. Kind of like a soldier, they do a job most others do not want to or can't. The media also tends to hype it up a lot. And of course, like soldiers or military, when you do something to one, you might as well have done it to all of them.

 

[Frank Ettin]

....I believe the problem comes from proof your shooting is justified.

How about a police officer? Can someone ambush a cop, shoot him in the head, call 911 and state the officer threatened him unjustifiably, that he felt his life was in danger? On the scene there's no witnesses, no video, just signs of a struggle between the two.... Should the shooter be arrested and taken before a judge, or released at the scene since there's little evidence other than what's previously stated? The dead cop can't talk and the shooter claims self-defense....

I think this really has already been answered. As with any other claimed defensive use of force, it will be handled, investigated and managed in accordance with what the evidence seems to show as the investigation unfolds and what the local policies are.

And remember that even though the shooter's testimony is evidence, it will be considered in light of factors relating to his credibility, e. g., his demeanor, reputation for veracity, and consistency with other evidence.

 

[Carry_24/7]

Good answers I believe..... I also believe the death of anyone should be treated the same.....

My question was to "baseline" such an opinion amongst others.

This is a sensitive subject amongst everyone right now for sure.

 

[shortwave]

This is a sensitive subject amongst everyone right now for sure.

A sensitive subject for sure.

Too many times we are guilty of condemning/convicting a person publicly based on whats said in the media without having all the facts. There was a discussion here on TFL recently about a carryout worker in Ohio that shot a robber in the store, chased a second BG out of the store, came back in and shot the first robber again.

Now the only thing we knew was what the media had put out and that the GJ had enough evidence to summons the shooter to the GJ....but as I read some of the posts, you would have thought there was a tape somewhere of this store clerk coming back in and blatantly shooting the shot BG again for no reason. And to top things off, AFAIK ,there had never been a statement released to the press from the store clerk as to his side of the story. Enough evidence to send someone to the GJ does not always(and often doesn't) constitute guilt of anything.

Again, we need to be really careful about claiming someones innocents/guilt based on media propaganda. Every now and then they don't have all the facts before they start broadcasting.

 

[Don P]

Again, we need to be really careful about claiming someones innocents/guilt based on media propaganda. Every now and then they don't have all the facts before they start broadcasting

Having this happen in my almost back yard sort of speak and getting all the local news reports is a joke. Station to station the reporters manage to let opinions slip into there report instead of the facts and the speculation they project is absolutely amazing. I have some insight as to what transpired due to the fact that I shoot competition with one of the officers that responded to this incident. Nuf said

 

[Webleymkv]

Quote:
With respect, it always intrigues me as to why some have the idea that murdering a police officer is somehow worse then murdering anyone else.
Your stated 'police officer' scenario should be investigated, facts gathered and if need be, prosecuted the same as any other shooting.
Course, I also feel the penalty for proven murder should be extreme, no plea bargaining, no immunity and the penalty applied across the board for whomever the murderer or victim was. No exceptions. Sadly, we have people in this country sitting in prisons doing more time for traficking in marijuana then murder....that's another discussion.

It is generally treated as any other case and investigated as such. However, the social stigma surrounding it is a bit more intense. Kind of like a soldier, they do a job most others do not want to or can't. The media also tends to hype it up a lot. And of course, like soldiers or military, when you do something to one, you might as well have done it to all of them.

I would add to this that someone who perpetrates a violent crime against a police officer is often viewed as an even greater danger to society than someone who perpetrates a violent crime against a non-LEO. The thought process behind that assumption is that if someone is willing to violently assault or murder a police officer, who is already known to be armed and capable of defending himself, then what would that person be willing to do to an unarmed and helpless victim?

While the letter of the law regarding murder of a police officer may be the same as murder of anyone else, when such an event occurs the police are more likely to give it their full and undivided attention and the perpetrator of the crime is likely to recieve a harsher punishment when caught and convicted.