Alaska has "Stand Your Ground"

[Matthew Carberry]

We already had a pretty good list of exceptions. Governor signed today.

HB 24 Relating to self-defense in any place where a person has a right to be.                                                 
                         _______________                                                                               
* Section 1. AS 11.81.335(b) is amended to read:                                                                   
(b)  A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area       of the encounter, except there is no duty to leave the area if the person is                                     
  (1)  on premises                                                                                       
    (A)  that the person owns or leases;                                                               
    (B)  where the person resides, temporarily or permanently; or                                     
    (C)  as a guest or express or implied agent of the owner, lessor, or resident;                                                                                                 
  (2)  a peace officer acting within the scope and authority of the officer's employment or a person assisting a peace officer under AS 11.81.380;                                             
  (3)  in a building where the person works in the ordinary course of the person's employment;                                                                                       
  (4)  protecting a child or a member of the person's household; or                                   
  (5)  in any other place where the person has a right to be.      

[De Selby]

I'm not so sure this wave of SYG legislation is good policy - the law of self defense works pretty well in most jurisdictions, and did before SYG.  In my view it offers little to no additional protection to law abiding citizens, but a fantastic loophole for underworld types to avoid facing juries and instead have their cases dismissed by a judge.   Drunken bar fights, gang fights, etc seem to be the most common invocations of stand your ground laws.

[dogmush]

Que hippie talking point #569.

Yes the laws are invoked, but they don't tend to get the person acquitted.  The few questionable SYG* cases that involved mutual combat around here either 1.) resulted in convictions because the defendant hadn't read the law, or 2.) were clear cut one guy went from nasty names to deadly weapons and the second defended himself.

*I still think Zimmerman will end up acquitted, but let's not rehash THAT case.

[De Selby]

Que hippie talking point #569.

Yes the laws are invoked, but they don't tend to get the person acquitted.  The few questionable SYG* cases that involved mutual combat around here either 1.) resulted in convictions because the defendant hadn't read the law, or 2.) were clear cut one guy went from nasty names to deadly weapons and the second defended himself.

*I still think Zimmerman will end up acquitted, but let's not rehash THAT case.

They do tend to muddy the water in dirtbag prosecutions though, you seem to agree.

My question is what benefit they offer to the rest of us - what was wrong with what these states had before?

Note about Zimmerman: his attorneys didn't even attempt a SYG hearing.  That's a pretty ominous sign for what they think of the defense, as nothing they'll raise at trial couldn't have been raised at an SYG hearing, which would've resulted in a flat out dismissal of the whole thing.  It's not a stand your ground law case for that reason, though.

[SADShooter]

They do tend to muddy the water in dirtbag prosecutions though, you seem to agree.

My question is what benefit they offer to the rest of us - what was wrong with what these states had before?

I'm not so sure this wave of SYG legislation is good policy - the law of self defense works pretty well in most jurisdictions, and did before SYG.  In my view it offers little to no additional protection to law abiding citizens, but a fantastic loophole for underworld types to avoid facing juries and instead have their cases dismissed by a judge.   Drunken bar fights, gang fights, etc seem to be the most common invocations of stand your ground laws.

Better all of this than leaving citizens to the mercy of zealous anti- self-defense district attorneys/prosecutors, of whom there are many.

[Matthew Carberry]

SYG didnt apply to the facts in Zimmerman, his defense theory states he was attacked by surprise and had no chance to retreat during the immediate struggle. Prior to Martin's assault there was nothing he might have been legally required to retreat from.

The duty to retreat doesnt require you to break free and flee, it only applies prior to engagement or after the attacker breaks off.

[Matthew Carberry]

De Selby, I agree Alaska didn't really need it, but that's because the prosecutors know that a BS claim a decent citizen should have fled would fail in front of an Alaskan grand jury.

There are numerous cases of malicious prosecutions by anti-gun prosecutors in anti-gun jurisdictions however, which was the impetus for these laws.

I don't have a lot of sympathy for the prosecution in any event. Successfully claiming self-defense requires the defendent to prove they didn't start the fight, weren't engaged in a crime, weren't drunk or stoned, and a host of other factors. If all the prosecutor can challenge after the fact in a warm safe well-lit office is that the defendant misjudged the absolute degree of safety in which they knew they could retreat in the middle of a violent confrontation, often in the dark, in fear for their life, they probably shouldn't be charging.

[De Selby]

The problem is that the common law and existing statutes actually did serve well at stopping malicious prosecutions - there is no evidence I'm aware of in these states of wrongful convictions or sustained prosecution that would've been altered in any way by SYG.

Zimmerman's defense, if accepted by the judge, would undoubtably have given him immunity from prosecution.  The law doesn't require retreat to have been an option - it grants immunity to anyone lawfully exercising self defense in a place they have a right to be.  That his defense didn't run it can only mean they did not have any hope the judge would accept their facts.

[Regolith]

The problem is that the common law and existing statutes actually did serve well at stopping malicious prosecutions - there is no evidence I'm aware of in these states of wrongful convictions or sustained prosecution that would've been altered in any way by SYG.

Zimmerman's defense, if accepted by the judge, would undoubtably have given him immunity from prosecution.  The law doesn't require retreat to have been an option - it grants immunity to anyone lawfully exercising self defense in a place they have a right to be.  That his defense didn't run it can only mean they did not have any hope the judge would accept their facts.

Carberry already explained why they aren't going with it. I'm thinking that whatever expertise in law you have is seriously being overwhelmed by your bias in this case.

Edit: I'd also like to point out that the prosecution was hell bent on charging Zimmerman, and the judge showed early on he had no inclination to stop it. The choice to charge him with 2nd degree murder, instead of a more provable manslaughter, also bears that out. The entire case has been so severely politicized that I don't think Zimmerman could get a fair shake out of anything short of a jury trial, and maybe not even then. Also, a jury trial is far less ambiguous than a hearing in front of a judge.

[Matthew Carberry]

The problem is that the common law and existing statutes actually did serve well at stopping malicious prosecutions - there is no evidence I'm aware of in these states of wrongful convictions or sustained prosecution that would've been altered in any way by SYG.

Zimmerman's defense, if accepted by the judge, would undoubtably have given him immunity from prosecution.  The law doesn't require retreat to have been an option - it grants immunity to anyone lawfully exercising self defense in a place they have a right to be.  That his defense didn't run it can only mean they did not have any hope the judge would accept their facts.

You not being aware =/= doesn't exist.

I had forgotten the immunity part of Fla's law.  That they recognized they didnt have clear cut enough evidence for  SYG claim =/= them not feeling confident of the facts in a straight self-defense trial.

[De Selby]

Regolith, I suspect Matthew will have a look at the FL statutes in question and see what I'm saying about the defense shortly.  

An SYG hearing is a free go at immunity before trial - it's hard to imagine how someone with a reasonably solid defence would forego the option.  It'd be malpractice to do so with a gift like SYG out there, since the SYG findings are in no way prejudicial to the trial outcome - all the hearing can do is set you free, or give you the trial you would have had anyway.

On the other hand, if you're certain that the defence won't be accepted, and also worried about the credibility of your witnesses and defendants statements, then you might sometimes not want one - the evidence from the SYG hearing (while not admissible to prove guilt) might reveal inconsistent stories at trial.  That's the only risk of an SYG hearing, and it's one that only applies to a shakey defense.

[Regolith]

On the other hand, if you're certain that the defence won't be accepted, and also worried about the credibility of your witnesses and defendants statements, then you might sometimes not want one - the evidence from the SYG hearing (while not admissible to prove guilt) might reveal inconsistent stories at trial.  That's the only risk of an SYG hearing, and it's one that only applies to a shakey defense.

Or if the judge has shown that he is inclined to railroad the charges against you, and damn the facts.

[Regolith]

And here's another good reason, from a Florida defense attorney in the comment section of this post at Of Arms and the Law:

I'm a Florida defense attorney.

Stand your ground hearing is just a nickname for a general immunity hearing related to self defense. It doesn't require that the case be a "stand your ground" type self defense case.

It's usually better to leave the SYG hearing until the trial is over (ie, after closing, but before the jury has deliberated). This gives you a second chance for acquittal, preserves it for appeal (the judge has to make a bunch of factual determinations along with the ruling) while preventing the state from getting a chance to hear your guy's entire testimony before they put on their case.

Posted by: Jim W at March 6, 2013 01:33 AM

Oh yeah, and every defense attorney and prosecutor I've talked with about this case (including a whole host of black attorneys) in the past year thinks the whole thing is a joke (ie, Zimmerman obviously justified, lack of prosecution by county office not motivated by racism).

Besides the pile of money the family's attorney hopes to make off the HOA, I can't really comprehend a possible motivation for this shitpile of a case is still moving forward. It's just another Casey Anthony style embarrassment for the state attorneys involved. And of course, everyone (except crim law attorneys) will gnash their teeth and proclaim how obviously guilty Zimmerman is... up until the jury comes back and they look stupid.

Posted by: Jim W at March 6, 2013 12:53 PM

[Perd Hapley]

Relaxing a bunch of laws pertaining to weapons control in Alaska, it seems. I predict you'll all be dead in a week.

[De Selby]

Regolith, the problem with Jim W's strategy there is that the FL Supreme Court doesn't seem to agree that the hearing can happen after trialhttp://www.floridasupremecourt.org/decisions/2010/sc09-941.pdf.

I suppose the plan could be to challenge the issue in the Supreme Court, but then they'd have to a) get the same supreme court to reverse itself; and b) show that an SYG hearing would've made a difference.

I don't know any practicing lawyers who think Zimmerman has a great defense.

[Regolith]

Regolith, the problem with Jim W's strategy there is that the FL Supreme Court doesn't seem to agree that the hearing can happen after trialhttp://www.floridasupremecourt.org/decisions/2010/sc09-941.pdf.

Where, exactly, in that ruling does it say that? I just read through the entire thing, and it only seems to rule that the improper quashing of a SYG hearing wasn't prejudicial to the outcome, and therefor they refused to overturn the conviction.

[De Selby]

Where, exactly, in that ruling does it say that? I just read through the entire thing, and it only seems to rule that the improper quashing of a SYG hearing wasn't prejudicial to the outcome, and therefor they refused to overturn the conviction.

It's on page 8 - "time for moving to dismiss" in bold.

Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment.

[makattak]

It's on page 8 - "time for moving to dismiss" in bold.

I'll quote the whole passage so we aren't just getting your interpretation of it:

Time for Moving to Dismiss.
Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(1) The defendant is charged with an offense for which the defendant has been pardoned.
(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

The facts on which the motion is based should be alleged specifically and the motion sworn to.

And I'll highlight:

However, the court may at any time entertain a motion to dismiss on any of the following grounds:

...
There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

[De Selby]

Mak, think about this for a second - if the defense believes it can convince the trial judge that there are no material facts in dispute that would show guilt, why is it waiting?  And if they can't convince the judge now, why would they expect the judge to take that role away from a jury later?

Posts like these are one of the primary reasons self represented defendants so often go down in flames - some ideas that are certain losers in court somehow appear rational to a big chunk of the population.

[MechAg94]

Common law self defense was mentioned above.  I think the erosion of common law self defense is partly why many states are looking to strengthen self defense laws.  Liberal or political prosecutors have done their best in many cases to undermine common law in favor of "letter of the law" reading of self defense statutes and emphasizing things such as duty to retreat and questioning how much personal danger the defendant was actually in.  IMO, state legislators are simply trying to write traditional common law self defense back into the law in their states (some doing it better than others). 

[Jamisjockey]

I'm not so sure this wave of SYG legislation is good policy - the law of self defense works pretty well in most jurisdictions, and did before SYG.  In my view it offers little to no additional protection to law abiding citizens, but a fantastic loophole for underworld types to avoid facing juries and instead have their cases dismissed by a judge.   Drunken bar fights, gang fights, etc seem to be the most common invocations of stand your ground laws.

The lulz.

Texas at least has specific language that you cannot be intoxicated while armed.  You also cannot engage in 'mutual combat' and then invoke syg.  Oh, and gang members are prohibited from being armed. So shooting someone after getting your ass kicked in a drunken bar gang fight is a no no.

[makattak]

Mak, think about this for a second - if the defense believes it can convince the trial judge that there are no material facts in dispute that would show guilt, why is it waiting?  And if they can't convince the judge now, why would they expect the judge to take that role away from a jury later?

Posts like these are one of the primary reasons self represented defendants so often go down in flames - some ideas that are certain losers in court somehow appear rational to a big chunk of the population.

So you have changed your position from "You CAN'T do it after the closing arguments" to "Why would you wait to do it then"?

Just wanted to highlight that subtle change.

[Tallpine]

Texas at least has specific language that you cannot be intoxicated while armed.

So that means you can't shoot a home invader if you have had a beer at home 

[Jamisjockey]

So that means you can't shoot a home invader if you have had a beer at home 

The language I was quoting is specifically part of the concealed carry language, but in DeSelby's example of the drunken bar gang fight, the only way one could legally be carrying here in the blood-in-the-streets-wild-west of Texas is to be carrying concealed.
Oh, wait.  You can't carry in bars, either, if they get more than 51% of their revenue from alcohol.
But you know, DeSelby's generalizations are always right.

[MicroBalrog]

So let me ask you this, De Selby.

Do you think that there should be a duty to retreat from a violent confrontation that you did not initiate?

If you are confronted with an armed attacker, or a physically superior attacker, or a group of unarmed attackers, and you shoot them. Is the fact you did not attempt to run away be an indicator you were not acting in self-defense?