Mediaboss Marketing

DEADLY FORCE, SELF-DEFENSE, AND PROSECUTORIAL IMMUNITY

The following article discusses the history and present scope of Floridas Stand Your Ground law in cases involving the use of deadly force. It further addresses the procedural steps for obtaining prosecutorial immunity.For additional information, view theFlorida Stand Your Ground Statuteor an exampleMotion for Declaration of Immunity and Dismissal.

In a highly publicized move, the Florida Legislature enacted in 2005 what has been popularly known as the Stand Your Ground law. This law, as codified in Sections 776.012, and 776.013, Florida Statutes, provides that a person is justified in the use of deadly force and has no duty to retreat if either:

(1) the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself, or another or to prevent the imminent commission of a forcible felony; or (2) the person acts under and according to the circumstances set forth in Section 776.013 (pertaining to the use of force in the context of a home or vehicle invasion).

Floridas Stand Your Ground law does not create a new type of affirmative defense. The principle that a person may use deadly force in self-defense if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm has been the law in Florida for well over a century. See Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892). Rather than creating a new defense, Stand Your Ground broadens the scope of a self-defense claim by establishing a general no duty to retreat rule.

Prior to the enactment of the statute, a person could not use deadly force in self-defense without first using every reasonable means within his or her power to avoid the danger, including retreat. See Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). As stated in earlier appellate court decisions, a combatant had to retreat to the wall before using deadly force. See Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997). This former duty to retreat derived from the common law, rather than from statute.

If abolishing the common law duty of retreat for cases involving the use of deadly force was not enough, Stand Your Ground goes one step further in cases involving home or vehicle invasions. Section 776.013, Florida Statutes, provides that, when an intruder unlawfully enters, attempts to enter, or refuses to leave a dwelling, residence, or vehicle owned or lawfully occupied by another person, the owner or occupant is presumed to have held a reasonable fear of death or great bodily harm so as to justify the use of deadly force. The intruder is furthermore presumed to be doing so with the intent to commit an unlawful act involving force or violence.

The presumptions employed in the context of a home or vehicle invasion mark yet another statutory departure from the common law. Although, prior to 2005, Florida case decisions had long recognized the Castle Doctrine (which provides that where one is not the aggressor and is violently assaulted in ones home, there is no obligation to retreat), the doctrine nonetheless required the owner or occupant of the home to reasonably believe that force was necessary to prevent death or serious bodily harm. See Danford v. State, 53 Fla. 4, 13 (Fla. 1907). Under the current statute, the reasonableness of the occupants belief is presumed so long as he or she acts within a dwelling, residence, or vehicle, as defined in Section 776.013, Florida Statutes.

Contrary to recent assertions made in the New York Times by UCLA Law Professor Adam Winkler, there are multiple statutory provisions limiting the scope of Floridas Stand Your Ground law.

Under Section 776.013(3), the no duty of retreat rule will not apply to a person who is engaged in an unlawful activity or is in a place where he or she has no right to be. Other provisions preclude a defendant from raising a self-defense claim altogether. Under Section 776.041, the justifications for the use of force do not apply if the accused is attempting to commit, committing, or escaping after the commission of a forcible felony.

The justifications for use of force will also not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes.

Floridas Stand Your Ground law provides potential immunity from prosecution for an accused who can establish (by appropriate legal procedures) that his or her actions fell within the purview of the statute. To understand how Stand Your Ground immunity works, one has to understand the nature of a self-defense claim and how such a claim is typically raised in a criminal proceeding.

Self-defense is a type of affirmative defense that operates to avoid (or cancel) the legal effect of a violent act (such as a homicide), which would ordinarily subject the accused to criminal liability. In a self-defense claim, the defendant admits the truth of the essential act (i.e. that he or she committed a homicide or other violence against a person), but justifies the act by claiming that it was necessary to save him- or herself from death, great bodily harm, or other unlawful uses of force. In the context of a homicide, a defendant claiming self-defense essentially says: Yes, I killed. But I did not murder (commit an unlawful killing) because, under the facts and circumstances, my acts were legally justifiable. Under common law and in most criminal cases today, the question of justifiable self-defense is a factual question for the jury to resolve at trial. The jury is the fact-finder. They decide whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.

Here again, Stand Your Ground makes another significant change from the common law. Under Section 776.032, Florida Statutes, a person who uses force as permitted in Section 776.012 or Section 776.013 is immune from criminal prosecution and civil action for the use of such force (with certain limited exceptions). Note the word immune. This means that, if the accused can factually establish pre-trial that his or her use of deadly force occurred under the circumstances outlined in Section 776.012 or Section 776.013, the State of Florida is legally and procedurally barred from further prosecution in the matter. In the event that a civil action is brought against the person who used qualifying deadly force, a court must award reasonable attorneys fees, court costs, compensation for loss of income, and all expenses incurred in the defense of the case.

The procedures for asserting prosecutorial immunity under the Stand Your Ground law are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. The Petersen decision definitively established that Section 776.032 was created by the Florida Legislature to establish a true immunity and not merely an affirmative defense. The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes. Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.

NOTE: In Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the First District decision in Petersen, resolving a previous conflict that existed between the First and Fourth District Courts of Appeal. Petersen is now binding law on all Florida courts.

Thus, under the procedures outlined in Petersen, prosecutorial immunity does not attach under Floridas Stand Your Ground law by way of mere factual assertion. The issue is raised pre-trial through the filing of a Motion for Declaration of Immunity and/or Dismissal. To obtain such a declaration by the trial court, a hearing is held where the defendant must demonstrate by a preponderance of the evidence his or her qualifications for immunity. This essentially reverses the burden of proof traditionally at play in a criminal case. The defense presents the evidence, shows that the statutory prerequisites have been met, and requests that the court grant the motion and appropriate relief. If the Motion is granted, the defense then files a Motion to Dismiss, as there is no longer a legal basis to proceed with the prosecution. The Motions for immunity and dismissal are frequently consolidated into a single filing.

With regard to the Trayvon Martin case, the notion that Stand Your Ground prohibited the prosecution of George Zimmerman is fundamentally false. Stand Your Ground in no way prevents a prosecution from being initiated against an accused. State Attorneys routinely file charges against defendants even where there is a clear Stand Your Ground defense. In those cases, the prosecutor will file charges, and, at an appropriate stage, defense counsel may file a Motion for Declaration of Immunity and Dismissal. The matter is then heard at an evidentiary hearing, where the defense must show its entitlement to immunity by a preponderance of the evidence. If successful, immunity is granted and the case is dismissed. If unsuccessful, the prosecution is resumed and the case resolves by way of plea or trial.

The rest is here:
Florida Stand Your Ground Law | Use of Deadly Force in Self ...

Critics say "stand your ground" turned Florida into the Wild West. Supporters say it has helped keep innocents out of jail. The truth of how the law has been used over the past six years was unknown until now.

What follows is the most comprehensive list of "stand your ground" cases ever created. Browse by victim or defendant, by fatal or nonfatal cases. Hover over a photo to explore the basics of each case or click it for a more detailed case file. Use the buttons at right to filter by race, sex and location.

Critics say "stand your ground" turned Florida into the Wild West. Supporters say it has helped keep innocents out of jail. The truth of how the law has been used over the past six years was unknown until now.

What follows is the most comprehensive list of "stand your ground" cases ever created. Browse by victim or defendant, by fatal or nonfatal cases. Hover over a photo to explore the basics of each case or click it for a more detailed case file. Use the buttons at right to filter by race, sex and location.

The accused Victims All male female Gender All Bay Brevard Broward Citrus Collier Duval Escambia Hernando Hillsborough Lake Lee Leon Manatee Marion Martin Miami-Dade Monroe Orange Osceola Palm Beach Pasco Pinellas Polk Santa Rosa Sarasota Seminole St. Lucie Volusia County All Black White Hispanic White/White White/Black White/Hispanic Black/White Black/Black Black/Hispanic Hispanic/White Hispanic/Black Hispanic/Hispanic Race

30 convicted

60 justified

10 pending

No cases match your filters

Page last updated: Oct. 1, 2014

Original post:
Stand your ground law, Trayvon Martin and a shocking legacy ...

Policy Forum

4:00PM to 6:30PM

Hayek Auditorium

Featuring Clayton E. Cramer, Historian, Co-author, Cato study, Tough Targets: When Criminals Face Armed Resistance from Citizens; Massad Ayoob, Firearms Trainer, author of In the Gravest Extreme; Steven Jansen, Vice President, Association of Prosecuting Attorneys; moderated by Tim Lynch, Director, Project on Criminal Justice, Cato Institute.

Since the tragic shooting death of Trayvon Martin, Floridas Stand Your Ground law has come under intense scrutiny. Florida governor Rick Scott is presently forming a task force to reexamine that states law. Critics argue that such laws have led to shootouts over petty disputes and have hampered police investigations with a sweeping grant of legal immunity. Supporters of the Stand Your Ground law say it does not apply to the Martin case and that such laws merely protect those who use a firearm in self-defense from prosecution and financially ruinous litigation. Join us for a discussion of what these laws actually cover and what has happened in the 24 states that have enacted them since 2005.

See the original post:
"Stand Your Ground" Laws: Self-Defense or License to Kill ...

We should be able to protect ourself from any dangers, period. Imagine if a criminal broke into your house with a gun, he aims it at you. While your wife/husband is afraid to take out the madman because she/he could get in trouble, for defending you! I believe it should only be legal if the defender is being threatend ONLY, not tresspassing or stealing, of course this would lead up to killings with an 'innocent' trespasser. But the defense of a family should always come first.

The Second Amendment ensures Americans have the right to defend themselves. "Stand Your Ground" laws, or "castle doctrine" is necessary when authorities and police can't get to your home on time. However, there are limits. Vigilante justice can't be doled out. Protecting property should be defined as someone trespassing on property or threatening someone in a car. Going out and tracking someone down away from your own property is an extreme example of such laws gone horribly wrong.

The stand your ground law is an effective law that when backed up into a corner, you have the right to defend. Given this ability after all chance of avoidance from being pursued has been taken, i believe it should be legal for a man/woman to take matters into his/her own hands and defend their person purely for the matters of survival of their own being and, if able to, stop the pursuer enough to get away from harms way.

My argument is based on law abiding citizens. Anyone who is not a convicted felon has the right to defend themselves in the United States read the Constitution if you don't believe me I am tired of all these liberals saying that guns are the problem no guns in the wrong hands are the problems so maybe you should look at the gun dealers sellers instead of looking at responsible gun owners

If someone were to come up to you on a side walk at night and said they wanted you to give them your money, or something to that affect, would you trust them to leave you alone once you get robbed? Or would you see the threat of potentially being murdered? If the robber is armed, are you going to just take the abuse? The simple, most logical answer is no. You wouldn't just take it. The laws are in place so people can defend themselves when there is no one there to aid them. On average, it takes 10-15 minutes for police to respond to a call. The robber would have been able to take your money, kill you, and disappear never to be seen again. Now, if you were being robbed and pulled out a gun and defended yourself, whether you shot him/her or killed them, you prevented yourself from being harmed. It is a matter of self-defense in a potential life-or-death scenario.

In America we have a right to be in public places and we should not be forced elsewhere by anyone, whether it be a "bad guy", government, etc. Stand Your Ground laws don't enforce a right to kill. They enforce a right to be at a particular place in our free country. Someone who threatens your life should not be able to force you to move elsewhere or even retreat. That's not much different than kidnapping when you think about it. However, there should be more common rules to enforce these laws. For example, you must be justifiably in fear for life or limb for yourself or others. These laws are also coupled with typical state like-force type laws, so people shouldn't be able to shoot someone over a verbal threat. And with regard to racial issues, the law itself is impartial. The law is against criminals and for the rights of the common person to be where they are. It doesn't matter what color the criminal is or the defender. However, in reality it may be used more often by one race than another. This is a matter of education; not law. Teach people that they have a right to be in a certain place and that they have the ability to defend that right, and it doesn't matter what color they are. But take away that right due to lack of education or due to statistical characteristics of use of the law, and we break the foundation of freedom our country was built upon. Stand your ground laws should stand.

Are rights to stand ground not only gives us the freedom to protect are selves but to have a secure comfort where ever we go. We should be able to feel safe in our Homeland. Due to the fact of increasing threats the use of personal defence can prove to be a vital and more amiable way.

Home is the one place where we feel safe and can escape temporarily from the problems of this world. When a stranger whose intent is unknown invades our safe haven, of course we should have the right to protect ourselves if the intruder has a weapon and we end up finding ourselves in danger in the one place we are supposed to feel safe.

If a person intends to harm my family or myself I should have the right to defend myself. Defending oneself is not vigilante justice. Since when is justice only right after a person is harmed of killed. Since when is it justifiable to allow a person to commit a crime while a law abiding person could have prevented the action. Self defense, stand your ground each imply that you are not willing to be a victim to the criminal act of another person.

All the people who thinks someone could kill anyone and just say "I was scared" and get off are wrong. Cops can look into the situation and figure out what really happened. Maybe a few cases a guilty person got away but most of the time they get it right. Look at OJ should we change laws cause he got away with it?

Originally posted here:
Are 'Stand Your Ground' laws a bad idea? | Debate.org

In 2004, the National Rifle Association honored Republican Florida state legislator Dennis Baxley with a plum endorsement: Its Defender of Freedom award.

The following year, Baxley, a state representative, worked closely with the NRA to push through Floridas unprecedented stand your ground law, which allows citizens to use deadly force if they reasonably believe their safety is threatened in a public setting, like a park or a street.

People would no longer be restrained by a duty to retreat from a threat while out in public, and would be free from prosecution or civil liability if they acted in self-defense.

Floridas law is now under a cloud as a result of the controversial February shooting of Trayvon Martin, 17, in Sanford, Fla. The 28-year-old shooter, George Zimmerman, who was licensed to carry a gun and once had a brush with police claims he acted in self-defense after a confrontation with Martin, and some legal experts say Floridas law could protect Zimmerman, who has not been charged. The case has inflamed passions nationwide in part because Zimmerman is Hispanic and Martin was African-American. Baxley, whose state party has benefited from large NRA donations, contends his law shouldnt shield Zimmerman at all because he pursued Martin.

The NRA has been curiously quiet on the matter since the shooting as the nation takes stock in light of the Martin case and other similar examples of whether stand-your-ground laws are more dangerous than useful to enhance public safety. The gun-rights organization did not respond to requests for comment. But the groups silence contrasts sharply with its history of unabashed activism on stand-your-ground legislation. Since the Florida measure passed, the NRA has flexed its considerable muscle and played a crucial role in the passage of more than 20 similar laws nationwide.

The Florida law is rooted in the centuries-old English common law concept known as the Castle Doctrine, which holds that the right of self-defense is accepted in ones home. But the Florida law and others like it expand that established right to venues beyond a home.

Since Florida adopted its law in 2005, the NRA has aggressively pursued adoption of stand-your-ground laws elsewhere as part of a broader agenda to increase gun-carrying rights it believes are rightly due citizens under the 2nd Amendment.

To gain attention and clout at the state level, the NRA has ponied up money and offers endorsements to legislators from both parties. The NRA and the NRA Political Victory Fund, its political action committee, have donated about $2.6 million to state-level political campaigns, committees and individual politicians since 2003, according to records compiled by the National Institute on Money and State Politics.

And ambitious politicians take note that the NRA is heavily invested and involved in congressional races.

The organization showered the Florida Republican Party Committee with a total of $125,000 in donations between 2004 and 2010. That sum tops the list of all NRA donations to state party committees between 2003 and 2012, according to National Institute on Money in State Politics records. The Senate Republican Campaign Committee of New York was next with $119,700.

The NRA energetically monitors state elections, from governors races down to the most obscure special election for a state legislative seat if the seat is considered crucial and, as its legislative action website shows, it regularly mobilizes constituents to flood lawmakers with calls and e-mails.

Following the Florida victory, the Stand Your Ground movement accelerated. In July 2006, the NRA posted celebratory news on its website, noting that legislators in eight more states Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Mississippi and South Dakota had already followed Floridas lead.

This train keeps a rollin Castle Doctrine Sweeps America, the NRAs 2006 message said. The campaign, the group said, is turning focus from criminals rights to those of the law-abiding who are forced to protect themselves.

Since then, a host of other states have passed various laws expanding the Castle Doctrine. Among them: Kansas, Louisiana, Michigan, Montana, Nevada, North Carolina, Oklahoma, Oregon, South Carolina, Tennessee Texas, Utah, Washington and West Virginia.

To spread the word, the NRA said in an Aug. 12, 2005 website posting, it approached the conservative American Legislative Exchange Council, which drafts legislation for like-minded state lawmakers. ALEC, as it is known, adopted model stand-your-ground legislative language in 2005 after Floridas top NRA representative made a presentation.

And along the way key lawmakers benefited from NRA support. In Indiana, for instance, GOP Gov. Mitch Daniels, who took office in 2005, received $12,400 in NRA donations between 2004 and 2008. Georgia Gov. Sonny Perdue got $7,500 from the group between 2004 and 2006. Mark Shurtleff, Utahs attorney general, received $22,500 between 2004 and 2008.

But it hasnt been smooth sailing quite everywhere. An emotional debate in Minnesota this year resulted in passage of a proposal in both houses, which are GOP-controlled, but a veto just this month from Democratic Gov. Mark Dayton. A couple of GOP lawmakers changed their votes from no to yes in the course of the legislative process, state records show.

We had a few people tell us apologetically and privately that they were afraid of the NRA, said Joan Peterson, a Minnesota activist with the Northland chapter of the Brady Campaign to Prevent Gun Violence. Proponents didnt get enough votes to override Daytons veto.

Heather Martens, executive director of Citizens for a Safer Minnesota, which opposed the proposal, said that a newly elected Democratic legislator who reluctantly voted yes had faced a tough special election campaign in 2011. At the center of the campaign were accusations that she would be anti-gun.

Take your best shot, a Minnesota Republican Party-sponsored mailer against Democrat Carly Melin said back then, urging voters to protect their gun rights from St. Paul liberals.

The Minnesota bills Republican sponsors, state Rep. Tony Cornish and state Sen. Gretchen Hoffman who is now running for Congress against a Democrat who's had NRA support did not respond to requests to discuss their proposal.

Opposition to the laws has gone beyond gun-control activists. Some of the staunchest critics the NRA has faced while promoting stand your ground laws have been state police chiefs and sheriffs associations and district attorneys groups.

In 2007, the Virginia-based National District Attorneys Association issued a report, Expansions to the Castle Doctrine, warning that the phenomenon could have significant implications for public safety and the justice systems ability to hold people accountable for violent acts.

Scott Burns, the associations executive director, said legislators decisions to buck law-enforcement officials on this issue can only be explained by the volatile issue of guns rights and the 2nd Amendment. He said many of these laws, in his opinion, have nothing to do with the true intent of the Castle Doctrine.

How can the Castle Doctrine apply, he said, seven miles from your home, at a shopping mall?

In Florida, the Tampa Bay Times reported that justifiable homicides in Florida spiked after the 2005 law, from an average of 34 yearly to more than 100 in 2007.

Prosecutors said the law permitted gang-related assailants from being prosecuted after a 2008 shoot-out in Tallahassee that killed a 15-year-old boy, the paper reported. A judge dismissed charges based on the stand your ground defense.

In 2010, Trevor Dooley, upset about a skateboarder on a Valrico, Fla., basketball court, marched into a park with a handgun, for which he was licensed and legally able to take into the park. Dooley ended up in a confrontation with David James, who was in the park with his young daughter. Dooley and James scuffled and Dooley shot James dead. In a case that is still pending, he was arrested for manslaughter but also claims he is protected by the stand your ground law.

Dan Gross, president of the Brady Campaign to Prevent Violence, accuses the NRA of feeding on fear and paranoia to expand concepts such as the Castle Doctrine. His groups research, he said, shows that politicians can survive an NRA stamp of disapproval more than they think, and that his priority is to convince more politicians the group is a paper tiger.

We are behind closed doors with politicians all the time, Gross said, who say they want to do the right thing, but that the gun lobby will ruin them.

Back in Florida, the soul-searching about the law has now extended to the legislature. Baxley, the sponsor, told CBS News that sometimes the application or interpretation of its use is the problem. He defended the law as important to law-abiding citizens, but suggested, according to other reports, that perhaps legislators should look at limiting crime-watch volunteers ability to pursue people and confront them.

Nothing, he said, is ever finished in the legislature.

Excerpt from:
NRA pushed 'stand your ground' laws across the nation ...