Armed Polite Society
Main Forums => Politics => Topic started by: Matthew Carberry on June 20, 2013, 08:56:57 PM
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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.
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* 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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And here's another good reason, from a Florida defense attorney in the comment section of this post at Of Arms and the Law (http://"http://armsandthelaw.com/archives/2013/03/george_zimmerma_1.php"):
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
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Relaxing a bunch of laws pertaining to weapons control in Alaska, it seems. I predict you'll all be dead in a week.
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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 (http://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.
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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 (http://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.
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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.
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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.
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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.
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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).
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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.
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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.
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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 ???
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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.
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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?
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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?
No worries, mate =D
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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.
Na.
No person should have to retreat from their home, business, buddy's place, etc. It'll be pretty easy to tell the scumbags from the regular citizens. Guy who I halted from trying to steal my car stereo had a list of crimes that was about 7-9 pages. I am the owner of my property, have no documented contact with the guy, and no criminal record in the US.
Thankfully, I did not have to use lethal force. But I doubt the legal end result would have been much different. It did, in part, come down to his word against mine. I'm not saying one's history should be the sole criteria used, but unless it's scumbag on scumbag crime... Most times it is the most obvious scenario. If a person with a lengthy criminal history is shot on the property of someone without a criminal history, the person without a lengthy criminal record is probably not the aggressor.
If two folks with lengthy criminal history engage in lethal activity, yes, trusting either party may be very complex. As long as no innocent bystanders are injured, few folks are going to be overly concerned.
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Relaxing a bunch of laws pertaining to weapons control in Alaska, it seems. I predict you'll all be dead in a week.
I had a contractor put a round in me this morning for talking back to him. Cop showed up and made me clean up the blood as a health hazard. And SYG doesn't even go into effect until mid-September. This was just "Friday in Alaska." =D
I actually agree with DeSelby that in most cases SYG laws aren't needed, I just disagree that they really make the prosecution's job that much harder. If they can't dispute the multiple other more clear-cut requirements for a successful SD claim they shouldn't be going to trial on a subjective opinion disagreement about the realistic possibility of retreat after the fact.
The cases prosecutors tend to bring up as problematic are bad guy on bad guy, with no civilians involved, in the midst of a criminal transaction they know occurred but can't get -easy- evidence to prove. I find it hard to care that much. If an innocent gets hit they will put out the resources like they do on every other "real" crime.
Other than that, better ten scumbags get away with killing other scumbags than one innocent get run through the system with the resulting known effects on finances, jobs, and personal relationships.
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No worries, mate =D
Micro, the answer to your question is no, I don't believe that. But I don't think you need a series of questionably written statutes to achieve that outcome, if you need anything at all.
Jamis, Texas was undoing damage done by monkeying with the criminal legislation in the 90's when it adopted the no-retreat rule, and that lesson runs both ways.
Matthew, have a look with how the Florida courts have struggled to work out how SYG fits in with the rest of self defense law and criminal procedure. That kind of uncertainty and difficulty doesn't improve justice. My view (doing this kind of thing for a living) is that if there isn't a compelling problem, legislation is not the answer.
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I think the immunity portion is the problem for Florida. There's a dozen states that have had simple "no retreat" by statute or precedent for decades (or forever) and they apparently do fine. If they can do it so can everybody else.
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I'm just failing to see the issue here.
THe worst thing that can happen is that a few extra guilty people gt acquitted. I don't really hold it as sacred that we absolutely must convict every guilty man, and then imprison everyone we convict for a long time, and then give them a permanent criminal record.
I'm happy to accept this if it avoids yet another drawn-out trial with the court nitpicking heat-of-the-moment tactical calls from the safety of an air-conditioned room guarded by multiple armed police officers.
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I'm just failing to see the issue here.
THe worst thing that can happen is that a few extra guilty people gt acquitted. I don't really hold it as sacred that we absolutely must convict every guilty man, and then imprison everyone we convict for a long time, and then give them a permanent criminal record.
I'm happy to accept this if it avoids yet another drawn-out trial with the court nitpicking heat-of-the-moment tactical calls from the safety of an air-conditioned room guarded by multiple armed police officers.
Okay, trials get more complicated, end up numerous appeals to resolve questions that courts have handled since the Magna Carta, and no tangible benefit to honest self defence cases results....and you can't see the problem because the only other cost is that a few more guilty people go free?
Again, the problem here is that these costs do not come with an advantage for traditional self defense. Matthew is right that it's the trappings (immunity, other procedures, etc) that cause the main problem.
But why risk it at all? What we had offered plenty of protection, and the attempts to symbolically recognise our custom of self defense comes with problems. I fail to see the win in that.
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Stand Your Ground legislation was proposed in Ohio last week. From HB203-
ORC 2901.09 B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, if that person is in a place that the person lawfully has a right to be
Additionally, current law says that the person claiming self defense can't be at fault in creating the situation which led to the confrontation.
I guess I don't really see a down side to the changes either.
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Okay, trials get more complicated, end up numerous appeals to resolve questions that courts have handled since the Magna Carta, and no tangible benefit to honest self defence cases results....and you can't see the problem because the only other cost is that a few more guilty people go free?
Again, the problem here is that these costs do not come with an advantage for traditional self defense. Matthew is right that it's the trappings (immunity, other procedures, etc) that cause the main problem.
But why risk it at all? What we had offered plenty of protection, and the attempts to symbolically recognise our custom of self defense comes with problems. I fail to see the win in that.
And courts/prosecutors have in quite a few historical periods since the Magna Carta handled this badly.
If we can avoid prosecutors asking silly questions such as "did you really need to pull the trigger not twice, but thrice", or "you could have run away", or using the fact that you used handloaded ammunition against you - which I am told the courts do - then this is a win.
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And courts/prosecutors have in quite a few historical periods since the Magna Carta handled this badly.
If we can avoid prosecutors asking silly questions such as "did you really need to pull the trigger not twice, but thrice", or "you could have run away", or using the fact that you used handloaded ammunition against you - which I am told the courts do - then this is a win.
Where is the evidence if this happening in cases where SYG laws would have had anything to do with it??? I hear lots of urban legends about what happens in self defense cases, but those legends aren't grounds for policy making.
Certainly unfair prosecutions happen, but I don't see how SYG law makes a difference to them.
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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.
Missed this - I'm assuming you didn't read the case, since it was entirely about how applying the rule that you bolded was the wrong thing to do for an SYG hearing. That's not a subtle change - what you bolded has nothing to do with the SYG law, and isn't the rule under which "immunity" motions are to be made. Or at least, that's what the Florida Supreme Court spent several pages saying there.
Edit: I should probably quote p.15 of the case to prevent any misunderstanding:
A motion to dismiss on the basis of section 776.032 immunity is not subject to the requirements of rule 3.190(c)(4) [De Selby edit: (c)(4) is what mak quoted]but instead should be treated as a motion filed pursuant to rule 3.190(b)[De Selby edit: in other words, a motion for which time for moving is before or at arraignment].
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I think part of it is revulsion against perceived abuses, common enough to be significant or not. There is an undeniable and correct feeling that many prosecutors and police in many areas are actively hostile to gun rights, carry rights, and the idea that armed self-defense can be legitimate.
Given that kernel of truth perception, SYG laws are a thumb in the eye to those in officialdom who created that perception.
"Going to treat -us-, the law and order good guys like criminals? F you, if you can't play nice we're taking away your tools to do so. If you want to screw even one of us, you're going to have to work harder at it."
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Where is the evidence if this happening in cases where SYG laws would have had anything to do with it??? I hear lots of urban legends about what happens in self defense cases, but those legends aren't grounds for policy making.
Certainly unfair prosecutions happen, but I don't see how SYG law makes a difference to them.
I think SYG is only part of the reform that is needed.
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I think SYG is only part of the reform that is needed.
What's the reform that's needed? The law of self defense has worked well in America for a long time. Restrictions on what you can defend yourself with are a different matter entirely.
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I think part of it is revulsion against perceived abuses, common enough to be significant or not. There is an undeniable and correct feeling that many prosecutors and police in many areas are actively hostile to gun rights, carry rights, and the idea that armed self-defense can be legitimate.
Given that kernel of truth perception, SYG laws are a thumb in the eye to those in officialdom who created that perception.
"Going to treat -us-, the law and order good guys like criminals? F you, if you can't play nice we're taking away your tools to do so. If you want to screw even one of us, you're going to have to work harder at it."
And worth it just for that alone.
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Micro, the answer to your question is no, I don't believe that. But I don't think you need a series of questionably written statutes to achieve that outcome, if you need anything at all.
Jamis, Texas was undoing damage done by monkeying with the criminal legislation in the 90's when it adopted the no-retreat rule, and that lesson runs both ways.
Matthew, have a look with how the Florida courts have struggled to work out how SYG fits in with the rest of self defense law and criminal procedure. That kind of uncertainty and difficulty doesn't improve justice. My view (doing this kind of thing for a living) is that if there isn't a compelling problem, legislation is not the answer.
What changes were made in Texas in the 90's? The only change I am aware of in the 90's was the CHL legislation.
From my memory, the SYG law and other recent changes for self defense were put in place mainly due to bad court precendents (both criminal and civil) which made the "rules of self defense" very complicated and full of trip wires for the person defending themselves due to fear of prosecution and fear of lawsuits. The protection from civil liability was the most important change with regard to self defense.
I remember my first CHL class where the instructor was talking about the need to try to walk away or retreat before shooting or the need to carry pepper spray or mace just so you could prove that you tried non-lethal defense first if you got sued. Sometimes these things are adviseable, but I shoudln't be required to do them to avoid a lawsuit.
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My question is what benefit they offer to the rest of us - what was wrong with what these states had before?
What's wrong with self-defense laws that impose a duty to retreat is that they impose a duty to retreat. That's bad enough -- if I am somewhere that I have every legal right to be, why should I be required to retreat from an assault before I am allowed to defend myself?
Then, most of them further muddy the waters by making the requirement to retreat subject to the caveat that you must do so only if you can do so "in complete safety." So now I, the VICTIM of an assault, am required to perform a higher-level probability and statistical analysis of myriad factors affecting the confrontation, all within a VERY small increment of time, to determine whether it is "completely" safe for me to attempt to retreat, or if I have satisfied all the requirements to defend my aging person.
So the benefit to us is that we no longer have to perform that high-level probability and statistics analysis. If attacked, we can just defend ourselves. I have a difficult time thinking of that as a bad thing.
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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.
:Cough, cough:
Harold Fish
:Cough, cough:
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:Cough, cough:
Harold Fish
:Cough, cough:
I had been thinking of this case while reading the whole thread. I think the biggest change affected in the followup of Mr. fish's case is that now, when self defence is claimed, it is a positive defense & the prosecutor has to prove different. You know, that whole innocent till proven guilty thing.
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:Cough, cough:
Harold Fish
:Cough, cough:
This is a good example - it was controversial among the gun boards because of the warning shots Fish fired and the lack of any weapon being presented, AND it had nothing to do with the duty to retreat. The case turned on whether his fear of being harmed was reasonable.
This idea that people are being convicted left right and centre because they could have run away is urban legend - the duty to retreat (where it exists at all) has never amounted to much in America, yet there's a wave of feel good legislation to address it.
There are certainly widespread rumors and movies to indicate that self defense law puts the innocent at risk, but we probably shouldn't be shaping our self defense laws based on what happens in fiction.
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If one accepts that it is difficult (or impossible) to prove a negative, let's look at the other side of your coin: Rather than prosecutions for NOT having attempted to retreat, how many people in situations where they should (and could) have defended themselves were injured or killed because they hesitated to exercise deadly force over fear of being prosecuted because they weren't certain whether or not they could retreat ("in complete safety")?
No, I don't have any cases to cite. It doesn't matter whether or not there are any at all. The possibility that there could be one tomorrow is enough.
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This idea that people are being convicted left right and centre because they could have run away is urban legend - the duty to retreat (where it exists at all) has never amounted to much in America, yet there's a wave of feel good legislation to address it.
Then what is the problem?
Is the duty to retreat a good thing, that we should keep it in law?
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Then what is the problem?
Is the duty to retreat a good thing, that we should keep it in law?
The problem is in changing a well settled, quite reasonable set of rules for something that has negative consequences for prosecuting some crimes, while providing no additional benefit to what the citizens had before in terms of self defense.
The old adage that you shouldn't fix what ain't broken applies to legislation as much as it does to anything else. The SYG reforms create uncertainty and introduce negatives to "fix" a problem with self defense that never existed.
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Are there, or are there not, laws that impose a duty to retreat in some states?
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Are there, or are there not, laws that impose a duty to retreat in some states?
This is a red herring - there are "duty to retreat" statutes and cases, but they don't require individuals to take any opportunity to avoid self defense possible. Volokh has some good commentary on it:http://www.volokh.com/2012/04/03/the-duty-to-retreat-the-duty-or-not-to-comply-with-demands-necessity-and-liberty/ (http://www.volokh.com/2012/04/03/the-duty-to-retreat-the-duty-or-not-to-comply-with-demands-necessity-and-liberty/)
Statutes necessarily change what courts "on the ground" are doing, and it's risky to do so when the courts are viewing self defense favourably.
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This is a red herring - there are "duty to retreat" statutes and cases, but they don't require individuals to take any opportunity to avoid self defense possible. Volokh has some good commentary on it:http://www.volokh.com/2012/04/03/the-duty-to-retreat-the-duty-or-not-to-comply-with-demands-necessity-and-liberty/ (http://www.volokh.com/2012/04/03/the-duty-to-retreat-the-duty-or-not-to-comply-with-demands-necessity-and-liberty/)
Statutes necessarily change what courts "on the ground" are doing, and it's risky to do so when the courts are viewing self defense favourably.
http://www.volokh.com/2012/04/02/im-going-to-stab-you-niggers-a-duty-to-retreat-case/
Here is an example.
Again, the question was: Did the victim’s “I’m going to stab you n---” require defendant to give up the right to be where he was, or else be legally stripped of the right to defend himself with deadly force if he stayed?
This should not be surprising, because duty to retreat laws, historically, were supported by racists.
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Are there, or are there not, laws that impose a duty to retreat in some states?
Since De Selby has ducked your question, I'll answer it. Yes, there are some states whose statutes allow the use of deadly force in self defense only if the victim cannot retreat. Some of these laws (but not all, IIRC) further confuse that by saying that deadly force may be used "if the actor cannot retreat in complete safety."
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http://www.volokh.com/2012/04/02/im-going-to-stab-you-niggers-a-duty-to-retreat-case/
Here is an example.
This should not be surprising, because duty to retreat laws, historically, were supported by racists.
Again, the example (which, as Volokh notes, is in the minority of jurisdictions that even have this rule) makes explicit that a duty to retreat is not an absolute duty - turning to the facts of the case, the victim was stabbed in his own front yard by a person who actually turned to someone else to get the knife before going on to stab the victim. Those facts would have you in just as much trouble in a SYG jurisdiction. Imagine this defense to a Texas grand jury: "My life is in danger - better stay in this crazy guy's front yard and ask my friend for a loaner knife, in case something happens and I need to defend myself from the householder!"
Note Volokh's statement in the article I linked previously about model penal code jurisdictions (which incidentally is the next self defence posting in the series):Incidentally, note that a half dozen or so states have adopted the MPC rule that I quote above, but I haven’t found even a single case that applies the provision that a defender can’t use lethal self-defense if he “knows that he can avoid the necessity of using such force with complete safety ... by complying with a demand that he abstain from any action.” I’ve looked hard, because I wanted to see how this provision plays out in practice, and yet I found nothing.
Some further reading here http://www.volokh.com/2012/03/24/lethal-self-defense-the-quantum-of-proof-the-duty-to-retreat-and-the-aggressor-exception/ (http://www.volokh.com/2012/03/24/lethal-self-defense-the-quantum-of-proof-the-duty-to-retreat-and-the-aggressor-exception/)
First, most American states rejected the duty to retreat even before the recent flurry of new “Stand Your Ground” laws....
Second, the duty to retreat has always been, at least in principle, a narrow doctrine.
...
The duty to retreat, then, is a much less important factor in self-defense cases than many seem to assume, partly because it’s a minority rule and partly because it applies only a narrow set of cases.
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Since De Selby has ducked your question, I'll answer it. Yes, there are some states whose statutes allow the use of deadly force in self defense only if the victim cannot retreat. Some of these laws (but not all, IIRC) further confuse that by saying that deadly force may be used "if the actor cannot retreat in complete safety."
Correction: there is no jurisdiction that requires you to retreat if there's a risk to your safety.
But hey, what would Eugene Volokh's analysis and research count for against a popular belief that these cases happen!? If it saves just one life it's worth it! It's for the children!
And now you see why I'm so skeptical of SYG laws - the arguments made in favour of them have little do with the evidence and everything to do with "just one case!" Arguments.
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Here's a question for our APS legal eagles in regard to SYG . . .
Does SYG legislation have any civil lawsuit implications in states that have some variation of the "Castle Doctrine" which confers protection from civil lawsuits in the absence of criminal charges or in the case of acquittal in criminal court?
???
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Correction: there is no jurisdiction that requires you to retreat if there's a risk to your safety.
But hey, what would Eugene Volokh's analysis and research count for against a popular belief that these cases happen!? If it saves just one life it's worth it! It's for the children!
And now you see why I'm so skeptical of SYG laws - the arguments made in favour of them have little do with the evidence and everything to do with "just one case!" Arguments.
http://en.wikipedia.org/wiki/Right_of_self-defense_in_Maryland#Duty_to_Retreat_and_the_Castle_Doctrine
http://www.volokh.com/2012/04/02/im-going-to-stab-you-niggers-a-duty-to-retreat-case/
Here is an example.
This should not be surprising, because duty to retreat laws, historically, were supported by racists.
This one has me scratching my head. It says that a fight erupted between the victim and the 3 guys in the yard.
At least here in Texas, mutual combat resulting in the application of deadly force is not justifiable. You must disengage completely and make it clear that you've done so.
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Here's a question for our APS legal eagles in regard to SYG . . .
Does SYG legislation have any civil lawsuit implications in states that have some variation of the "Castle Doctrine" which confers protection from civil lawsuits in the absence of criminal charges or in the case of acquittal in criminal court?
???
Depends on the state.
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Correction: there is no jurisdiction that requires you to retreat if there's a risk to your safety.
But hey, what would Eugene Volokh's analysis and research count for against a popular belief that these cases happen!? If it saves just one life it's worth it! It's for the children!
I have actually linked you to his article about a case like this.
Does this law infringe on anyone's freedom? No.
Why should there be any kind of provision for a duty to retreat?
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I take issue with the "negative consequences" claim. The built in assumption is that bad guys will "get away with murder" if the duty to retreat is removed, but unpack that.
There are a pile of factors that are the burden of the defense to assert and defend to justify the use of force, much less deadly force, under standard self-defense law. All SYG does is remove an utterly subjective assertion about whether or not the defendent could have retreated. It leaves every more factual, more "either/or" objective factor untouched (initiated conflict, course of crime, disparity of force, etc).
Saying that "duty to retreat" is necessary, when all those other factors are available for challenge by the prosecution if they exist, does not speak well of the prosecution's case.
If the -only- fact of the case the prosecution feels they can effectively challenge is the most subjective, they simply should not be putting a presumptively innocent citizen through the time and expense of an indictment, much less trial, particularly given the well-known potential for even a successful defense to utterly ruin the life of the acquittee.
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IMO, the main issue with duty to retreat ideas is the subjective nature makes it more difficult to defend against in civil suits since the rules are a bit different. It probably scares law abiding citizens more for the civil defense aspects than the criminal. As I said before, there was a lot of fear about "escalation of force" and "retreat" years ago in Texas. Instructors would go into all sorts of ways to "escalate" use of force on the part of the victim so a lawyer couldn't argue against you and teaching people to back away even if not that far so they could argue they did try to retreat. I am glad those issues are not prevalent today. It added a lot of complication for most people and took away from the critical discussion of what is a good shoot versus bad shoot.
Honestly, I think these issues were settled in the courts as much as the legislature. And again, the most important part of the standard SYG legislation is the civil lawsuit protection.
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I agree with Matthew about not needing to introduce a duty to retreat - My point here is that self defense laws should not be changed because they've generally served America well, not that they need the minority retreat rule (although due to the long history of recognising self defense it works well even in those states where it exists).
American states have a long and well settled history of self defense law that I see no point in disturbing, and that applies as much to states with no duty to retreat. The point is to avoid confusing and accidentally disturbing a system of self defense law that works well at present.
My point about not needing to change the minority of states (like MD, cited above) with a duty to retreat is that in practice, the duty only applies to facts that would have you convicted anyway in an SYG state. Jamis, you'll note in the MD wiki that the law recognises the rule explained by Volokh - the personal safety exception essentially means that in lethal force cases, the duty to retreat never applies unless you were already in the wrong.
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Here's a question for our APS legal eagles in regard to SYG . . .
Does SYG legislation have any civil lawsuit implications in states that have some variation of the "Castle Doctrine" which confers protection from civil lawsuits in the absence of criminal charges or in the case of acquittal in criminal court?
???
Michigan has a civil lawsuit shield. You can still be sued, though. The plaintiff (or their estate) would just argue that your defense was not lawful. It does make it harder to win and you can recoup attorney's fees.
As for SYG, here it didn't really change anything except for some procedural things. The only situation where there was a duty to retreat was from a mutual affray. I suppose one benefit is that it prevents a court from expanding this some time in the future.
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I agree with Matthew about not needing to introduce a duty to retreat - My point here is that self defense laws should not be changed because they've generally served America well, not that they need the minority retreat rule (although due to the long history of recognising self defense it works well even in those states where it exists).
American states have a long and well settled history of self defense law that I see no point in disturbing, and that applies as much to states with no duty to retreat. The point is to avoid confusing and accidentally disturbing a system of self defense law that works well at present.
My point about not needing to change the minority of states (like MD, cited above) with a duty to retreat is that in practice, the duty only applies to facts that would have you convicted anyway in an SYG state. Jamis, you'll note in the MD wiki that the law recognises the rule explained by Volokh - the personal safety exception essentially means that in lethal force cases, the duty to retreat never applies unless you were already in the wrong.
Then it shouldn't be a problem if duty to retreat is removed, as long as "if you're committing a crime, you don't get coverage under this law" is tagged to any SYG or Castle doctrine law. Correct?
Pennsylvania passed Castle doctrine. Duty to retreat was removed, civil immunity is automatic unless you are not criminally convicted, not a defense if you are committing a crime. It strengthens the presumption of innocence. Maybe a bad guy or two will skate. But better ten bad guys skate than one innocent man go to jail or pay tens of thousands of dollars to a scumbag's family.