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    Stand Your Ground law is not a “license to kill”

    Stand Your Ground law is not a “license to kill”

    Law Professor pundits confuse general principles of self-defense law with Stand Your Ground, and contribute to the confusion.

    The failure of the jury in the Michael Dunn case to convict Dunn of First Degree Murder or any of its lesser included offenses in the killing of Jordan Davis has led to a predictable outpouring of claims that that the case reflects societal racism, if not racism in the judicial system.  Dunn was convicted only of attempted murder and unlawfully firing a missile into an occupied vehicle — none of which relate to his killing of Davis.

    As with the acquittal of George Zimmerman in the killing of Trayvon Martin, there was a rush to blame Florida’s Stand Your Ground (SYG) law.

    Unfortunately, many of the people writing about SYG are doing so in apparent ignorance of what SYG is and what it is not.  By conflating “SYG” with other completely distinct self-defense legal concepts they only contribute to confusion over these self-defense law issues and complicate good faith debate of them.

    More specifically, SYG as a legal concept functions ONLY to relieve a defender of a legal duty to retreat before he can use deadly force in self-defense.  It has nothing whatever to do with such other distinct self-defense law concepts as reasonable fear of harm, presumptions of reasonable fear, which party bears the burden of persuasion, or self-defense immunity.

    We do not know why the Dunn jury deadlocked, on what issue or by what vote count.

    We do know that precious little trial time was spent on the issue of whether Dunn should have or could have driven away once he heard loud music that bothered him.  Almost no time was spent on whether Dunn could have driven away once he believed that Davis was threatening him with a shotgun.

    That is significant, because SYG only addresses a duty to retreat once the defender would otherwise be justified in the use of deadly force.  In other words, assuming Dunn was in such imminent threat of death or seriously bodily harm that use of deadly force was legally justified, did he need to look for a way to retreat?  Florida law, as the law in most states, says No, a person who otherwise is justified in using deadly force does not need to retreat.

    Little emphasis was placed on the issue of post-threat retreat during the trial, particularly once the shotgun was brought into play.  While we cannot completely rule out that SYG played some role in the non-verdict until we hear from the jurors, SYG as a law has nothing to do with the issues that are front and center in the press, namely whether Dunn had a reasonable fear of imminent death or great bodily harm justifying use of deadly force.

    That has not stopped the punditry from claiming SYG was the central focus of the case and the reason for a non-verdict.  This suggests either that they simply do not understand the facts of the case vis-à-vis the issue of retreat, or that they are conflating various other distinct self-defense law concepts with that of SYG.

    Such conflation of SYG with other distinct self-defense law concepts is something that we have, sadly, come to expect as routine from journalists.  It is deeply disappointing when such a lack of intellectual rigor is displayed by those whose profession it is to teach the law.

    University of Colorado-Boulder law professor Paul Campos has an article at Salon.com that’s unfortunately all too typical of this conflation phenomenon, Michael Dunn’s sick license to kill: The hot-blooded murder of Jordan Davis and Florida’s perverted justice.

    Here is the key portion of Campos’ legal analysis from the Salon.com article, which also constitutes the entirety of Campos’ cross-post at Lawyers, Guns & Money blog,  Fear of a black planet:

    “Unlike the George Zimmerman trial, the Dunn case featured a straightforward application of Florida’s stand your ground law. That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.

    If you think that sounds crazy, you haven’t heard the half of it. Because the stand your ground law creates an affirmative defense for criminal defendants, the prosecution had to prove beyond a reasonable doubt that Dunn’s claim that he had a reasonable fear he was about to suffer great bodily harm was false. Such laws, in effect, put the victim rather than the killer on trial, which is exactly what happened in this case.”

    As is the case with much of the punditry’s discussion of SYG, it is difficult to find a single sentence in those two paragraphs that bears the slightest resemblance to law or reality.

    Let’s take them one at a time, in the order presented:

    “Unlike the George Zimmerman trial, the Dunn case featured a straightforward application of Florida’s stand your ground law.”

    As already explained, SYG applies only where the defendant had available a safe avenue of retreat and otherwise was justified in using deadly force. Whether Dunn could have left the scene prior to the supposed shotgun being pointed was an issue, but it had nothing to do with SYG, which comes into play only once a threat of imminent death or great bodily harm is present.

    Here, Dunn claimed that he was only three feet away from Jordan Davis who allegedly was armed with a shotgun when Dunn decided it was necessary to use deadly force. The jury was then obliged to either disbelieve or believe that this use of deadly force was lawful self-defense

    If the jury didn’t believe Dunn’s use of force was self-defense, SYG doesn’t apply.  At all.  SYG only addresses the duty to retreat once the use of deadly force otherwise is justified.  If there is no self-defense, there can be no SYG.

    Only if the jury believes that Dunn’s use of force was otherwise justified does SYG arise, and then only if that use of force could have been avoided by Dunn taking advantage of a safe avenue of retreat.

    The ability to safely retreat was not an issue in the Dunn trial, which I watched almost in its entirety and blogged about daily.  And for good reason.  Is there anyone who believes it is possible to safely flee from a shotgun-armed attacker standing a yard away? Shotgun pellets travel at ~1,200 feet per second, and in backing up Dunn would first have had to bring  himself closer to that shotgun, which was behind him.  He’d merely have been shot as he passed by Davis. Given these facts there was no safe avenue of retreat in this scenario, which is why it was not a major issue in the case.  (In any case, no duty to retreat would have required Dunn to leave behind his fiancé, Rhonda Rouer, who did not return to his car until after the act of purported self-defense has occurred.)

    Even non-SYG states do not require you to retreat if doing so will increase your danger–retreat is only required if a safe avenue of retreat exists.  Absent a safe avenue of retreat, there is no duty to retreat. Absent a duty to retreat there is no role for SYG to relieve you of that duty.  Under the facts of this case, SYG is irrelevant.

    This was not a SYG case, whether or not one believes that Dunn acted in lawful self-defense.

    Next sentence:

    “That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.”

    As already discussed, this case has nothing to do with the legal concept of SYG. Nor does Florida’s self-defense law–neither its SYG nor any other provision–have any application of “reasonableness” that differs materially from any other state’s self-defense law.

    If Dunn’s perception of fear was merely subjectively reasonable, but not objectively reasonable, then his conduct was not self-defense as a matter of law, and both SD and SYG are inapplicable. If Dunn’s perception of imminent death WAS both subjectively and objectively reasonable, then his conduct was lawful self-defense REGARDLESS of any SYG consideration. It would be self-defense under those circumstances even in a non-SYG state. SYG is again irrelevant.  This would be the case in any state, not just Florida.

    Next sentence:

    If you think that sounds crazy, you haven’t heard the half of it.

    Whatever, filler, no intellectual value there. Next sentence:

    Because the stand your ground law creates an affirmative defense for criminal defendants, the prosecution had to prove beyond a reasonable doubt that Dunn’s claim that he had a reasonable fear he was about to suffer great bodily harm was false.

    Stand Your Ground has nothing to do with who bears the burdens of production or persuasion in a self-defense case. SYG deals only with relieving the defendant of a legal duty to retreat, if safely possible, before using force in self-defense.  In any case, Florida’s burden of proof provisions for self-defense are substantively the same as every other state, with the notable exception of Ohio.

    There are 34 states in the US that are SYG states, and 16 that impose a duty to retreat. Among those 16 that impose a duty to retreat all but one also require that, once self-defense is properly raised at trial, the prosecution bears the burden to disprove self-defense beyond a reasonable doubt. Only one state in the entire country, Ohio, requires that the defendant bear the burden of proving self-defense by a preponderance of the evidence.

    Conflating SYG with other, entirely distinct, legal self-defense concepts as Professor Campos does here with the issue of the burden of persuasion, and as others often do with respect to self-defense immunity, presumptions of reasonableness, etc., reflects a general media misunderstanding of how SYG operates.

    Next sentence:

    Such laws, in effect, put the victim rather than the killer on trial, which is exactly what happened in this case.

    This is simply nonsense. SYG doesn’t put the victim of a shooting on trial, it addresses only cases where the shooter has demonstrated justifiable use of deadly force and whether there was a legal duty to retreat.  There can be no SYG issue in the absence of otherwise lawful self-defense.  If victims are put on trial as a defense tactic, it has nothing to do with SYG.

    And don’t even start with Trayvon Martin.  In the Zimmerman trial, the evidence was overwhelming that Martin was on top of Zimmerman punching Mixed Martial Arts style as Zimmerman was pinned on his back on the ground with his head being bashed into concrete at the time the single shot was fired.  The Zimmerman case, as the Dunn case, turned on whether there was justifiable use of deadly force, not the duty to retreat.

    Sadly, Professor Campos is far from the only purportedly legal academic who contributes to such intellectual obfuscation of self-defense law.  Take, for example, this quote from Mary Anne Franks, an associate professor at the University of Miami, in the New York Times:

    This trial is indicative of how much of a problem Stand Your Ground laws really do create. [ . . . ] By the time you have an incident like this and ask a jury to look at the facts, it’s difficult to re-create the situation and determine the reasonableness of a defendant’s fear.

    As explained, the legal concept of SYG has nothing in particular to do with standards of reasonableness in self-defense cases, at least no more than any of the other elements of a self-defense claim.

    Or this quote, from Kenneth Nunn, a law professor at the University of Florida, as reported in the Tampa Bay Times:

    Although I don’t think the evidence supports this, it is possible that the jury felt that Dunn was proper to stand his ground as to Davis, but his shooting of the others in the car was excessive.

    As we can now all see clearly, the only thing SYG had to do with either the Zimmerman or Dunn trials is that it is used as a convenient political distraction based on a misunderstanding of the law.

    –Andrew, @LawSelfDefense


    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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    Comments



     
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    madmarten | February 18, 2014 at 1:51 pm

    Regarding Florida, is the § 776.013(3), Fla. Sta,(SYG), Read to the jury in their instruction every single time in a self defense case?

      No, the statute is not read to the jury. The jury instruction is read, which covers several self-defense statutes:

      3.6(f) JUSTIFIABLE USE OF DEADLY FORCE http://is.gd/y3M5Rs

      –Andrew, @LawSelfDefense


         
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        madmarten in reply to Andrew Branca. | February 18, 2014 at 7:40 pm

        Are you saying the 776.013 is never under any circumstance read or given to jurors?

        Wait a minute isn’t 776.013 included in 3.6(f) ?

        It says at the top 3.6(f) only things warranted by evidence are given.

        So how is decided when to read it and when to not read it?
        Is there some kind of pretrial(or mid-trial) conference or declaration?

          Not sure why this would be so much of a shocker, I’m simply saying that when the jury is instructed by the court, they are read jury instructions. NOT statutes. Of COURSE not statutes. Statutes include things like the terms of punishment, which are WAY outside the purview of the jury.

          There’s a reason we have things called jury instructions. We use them to instruct the jury. Instead of reading them statues.

          Naturally, the jury instructions are based on statute. AND case law. AND limited to what falls within the jury’s fact-finding purview.

          –Andrew, @LawSelfDefense


             
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            madmarten in reply to Andrew Branca. | February 18, 2014 at 10:50 pm

            Dude, I have never been part of a criminal proceedings, let alone in Florida. I only know what I have heard in the media, and I am sure you are skeptical of that. Of course I doubt entire pages of statutes are read, but pieces and summaries are.

            So let me try again. Are the following words read or otherwise provided for the jury to consider in every single case where justified use of deadly force is used as defense to criminal prosecution in the State of Florida:

            “If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.”

            If not every such case, then how is it determined? I believe this is true but I wanted to verify.

            I was hoping for a teaching answer, instead of an f-off answer.

            Asked and answered.

            You’re boring. I’m done with you.

            –Andrew, @LawSelfDefense


     
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    Tim Lookingbill | February 18, 2014 at 2:36 pm

    With regard to Dunn not having to retreat in order to avoid BACKING out from in front of the convenience store and thus passing in front of J Davis’ supposed shotgun blasts that never happened, the time it must have taken for the boys to back out as Dunn started shooting the sides and turn the vehicle around in a direction that allowed Dunn to shoot the rear of the vehicle suggests there had to be a lengthy pause before Dunn continued shooting the rear of the SUV. Right?

    I didn’t see any CGI layout of how both vehicles were parked in front of the store, so if there was a quicker get away by the SUV that made the SUV appear to drive in a pattern that put the rear of the vehicle in front of the general direction of Dunn’s hail of bullets, it would help to have some clarity on that.


     
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    Tim Lookingbill | February 18, 2014 at 3:15 pm

    Thanks for the clarity, madmarten.

    So basically overall on both Zimmerman and Dunn cases the jury got it right according to the definitions of self defense law in the state of Florida.

    From all the slicing and dicing of the minutia of data on cases such as this, I find that to be a miracle. I have no idea how juries can keep track of it all.


     
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    Semper Why | February 18, 2014 at 5:42 pm

    Mr. Branca, a friend and I were debating the Dunn verdict (or lack of it in one case) and she posted an interesting hypothetical.

    What if Davis survived? Would Dunn have been charged with four counts of attempted murder 2 and convicted upon all 4 charges? I ask because my understanding is that the final shots into the SUV as it was driving away is what earned him the attempted murder conviction. But would those shots, in your estimation, convinced the jury to convict him on all 4 accounts of attempted murder since he was trying to kill all 4 occupants?

    In a weird twist, would Dunn have been convicted of more crimes if he had failed to kill Davis?

      It appears that the jury approached the problem from the perspective of each of the three uses of defensive force–each of the three groups of fire–individually.

      It appears that at least one juror was unconvinced that the State had met its burden to disprove self-defense beyond a reasonable doubt for the FIRST burst of fire–the three rounds that hit and killed Davis. Thus, that juror was unwilling to convict on the M1 or any lesser included charge for the shooting death of Davis.

      Assuming that to be the case, then no, it would not have mattered if Davis had survived. If a juror believes that the particular use of force was justified, then it is a total defense to any criminal charge based upon that use of force–whether it be murder, attempted murder, battery, assault, whatever.

      –Andrew, @LawSelfDefense


         
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        madmarten in reply to Andrew Branca. | February 18, 2014 at 7:49 pm

        Except if Davis had lived to testify..

        And stated that he did not have gun. That could have made a difference.


           
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          tom swift in reply to madmarten. | February 18, 2014 at 8:38 pm

          Hardly. Would anyone really expect Davis to testify that he had a gun, even if he did? Of course not. Whatever Davis’s testimony, jurors would either believe Dunn, not believe Dunn, or not really believe Dunn but still have reasonable doubts.

          That’s not very bright. The argument that there was never a weapon in the SUV was made repeatedly, and with force, by the three other boys. How much would Davis’s as fourth witness have added to that? Little or nothing. For you to assume that would somehow be decisive is silly.

          –Andrew, @LawSelfDefense


         
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        Semper Why in reply to Andrew Branca. | February 18, 2014 at 9:39 pm

        MR. Branca, if I understand you properly, we’re guessing that the jury considered each volley of fire as a separate use of force. I get that the 1st & 2nd volleys are the basis for the deadlock by at least one juror. That 3rd volley was not justified in the eyes of the jury and resulted in them finding him guilty of 3 counts of attempted murder. So far, so good.

        So considering the circumstances of the 3rd volley if Davis had survived: we now have Dunn attempting to murder four teenagers, one of whom he may/may not have legally shot. But while the SUV is speeding away, Dunn is not defending himself and the jury agreed with the State on that (insert assumption disclaimer). At this point in our hypothetical, Davis will survive three attempts to kill him – two possibly justified and one not.

        The way it turned out, I can understand the State not charging Dunn with attempted murder of Davis for that 3rd volley considering that the 1st volley actually did kill him. But it sounds like your opinion is that if Davis survived the first two volleys, Dunn’s 3rd volley makes no difference.

        This contradicts a point made in a couple of my lethal force classes – namely that you do not “finish off” the bad guy once he no longer is a threat, regardless of how justified you were in shooting him in the first place. In our hypothetical, it sure seems like Dunn is attempting to murder three teenagers and attempting to finish off the 4th.

        I would be curious if this changes your assessment. Usual caveats apply, we’re all making assumptions, yada yada yada.

          Ah, I understand your point now.

          If we imagine that Davis was NOT killed in the first volley, and that he was NOT killed in any of the subsequent volleys, then you are quite right, having survived he would have been a fourth attempted murder charge (rather than a murder charge), and on the same basis as the jury convicted Dunn on the attempted murder of the other three I would expect them to have convicted him of the attempted murder of Davis.

          If the third-volley of rounds was not justified against the other three-and based on the jury verdicts we have to assume that was their conclusion–then it most likely would also not have been justified against Davis.

          I say “most likely” because there is one important distinction between Davis and the others, based on testimony in evidence. Dunn was unable to point to any particularly threatening conduct by any of the other three boys. He WAS (lying or not) able to allege specifically threatening conduct by Davis.

          It is possible that a jury could still conclude, had Davis lived, that although Dunn’s firing of the “parting shots” was not justified against the three boys who had never explicitly threatened him, it might have been justified against the one individual who he claimed DID explicitly threaten him.

          Of course, we’re deep into speculation land now, which I try to avoid.

          Incidentally, one of the jurors is to speak on Nightline tonight, just after midnight. I will be live tweeting that appearance, and posting a summary here immediately after.

          –Andrew, @LawSelfDefense


       
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      tom swift in reply to Semper Why. | February 18, 2014 at 8:33 pm

      my understanding is that the final shots into the SUV as it was driving away is what earned him the attempted murder conviction

      There are no understandings. All of this is speculation, because the jurors ain’t talking. And they have no obligation to talk.

    Wonder what you think the state needs to do to secure a conviction in the retrial, what their chances are, and if the deadlock in this case was largely due to a poor prosecution.


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