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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


    I don’t believe they actually misunderstand the law. I suspect they fully understand the concept of Stand Your Ground and find it abhorrent because it empowers individuals instead of making them submissive. That, simply, cannot be allowed.

    Guys, vivibee601 is just trolling you.

    His goal is to spike the thread so that it becomes about people trading insults instead of discussing the Dunn case.

    Oh-Oh Andrew, umm, Mr. Branca sir..here’s another

    http://is.gd/wiWpHs

    “Arkansas man guns down 15-year-old girl for egging son’s car as a prank”

    However, there IS a big difference, as you will see, if you do care to see, that is.


       
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      Gremlin1974 in reply to JP. | February 17, 2014 at 10:59 pm

      I don’t really like to speculate before all the facts are known, but I happen to live not very far from where this occurred and it certainly sounds to me like Mr. Nobel will be one of the newest residences on Arkansas Death Row.

      Here is the good news for all the Liberals out there Arkansas isn’t a SYG state, that aught to make them happy.


         
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        tom swift in reply to Gremlin1974. | February 17, 2014 at 11:14 pm

        The story is short on facts; expect it to be long on spin. I note that vandalism is merely “a prank”. That’s a good start; I’m certain a long parade of euphemisms will follow.

        I do appreciate the sheer comic lunacy of the “terrorism” charge. They must have quite a sense of humor ’round those parts.

        But so far, nothing of interest from a self-defense standpoint.


       
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      Phillep Harding in reply to JP. | February 18, 2014 at 3:07 pm

      Isn’t it legal for police to shoot kids who egg their patrol cars?


     
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    Bruce Hayden | February 17, 2014 at 8:45 pm

    Campos is a piece of work. His progressive opinions are, or at least were, inflicted on the people in Colorado on a routine basis in the opinion pages of the Denver Post. At one point, I complained to both the paper and his dean, to, of course, no avail, about his fact-free rants.


     
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    DaveGinOly | February 18, 2014 at 12:02 am

    On a more fundamental level, there can be no SYG cases in FL. Why? Because the law does not provide a positive defense to suspects in criminal cases – it prevents the state from prosecuting shooters who had an opportunity to safely retreat. In cases of claimed self-defense, this limits the question to “Was the shooting justified?” There can be no question “Did the shooter fail to retreat when possible?” Because “failure to retreat” is not a crime, and because SYG removes an obligation (rather then imposing one), no shooting case in a state with an SYG law can be an SYG case because the SYG law precludes the accusation and thus obviates the need for a defense to argue that retreat was not possible or was unsafe. With no need for defendants to invoke the law, no case is an “SYG case.” The subject doesn’t, and can’t, come up.

      “. . . the SYG law precludes the accusation and thus obviates the need for a defense to argue that retreat was not possible or was unsafe.”

      Nope.

      Just because SYG does away with the legal DUTY to retreat does NOT mean the State cannot raise the failure to take advantage of a safe avenue of retreat as a factor in the overall reasonableness of the defensive conduct.

      There ARE states where such an argument is prohibited by law–Texas is one example–but Florida is not among them.

      SYG in Florida (and most SYG states) merely does away with the legal DUTY to retreat. It does NOT mean that a failure to retreat is unmentionable by the State.

      –Andrew, @LawSelf DEfense


         
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        madmarten in reply to Andrew Branca. | February 18, 2014 at 2:12 am

        Andrew, firstly, I want to thank you for your detailed explanations about self-defense and SYG law.
        I have to admit it has become a little mental obsession of mine to worry if these SYG laws (esp in Florida……) are bad for society. According to you thought, it apparently is really overblown.
        So if I understand you correctly, you state that SYG only applies (or would be applicable in way different from a non-SYG state), at the exact moment the deadly threat appears and not before?
        I read the Florida statute, “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.”
        My lay persons reading found no indication of this strict switch. It says “force with force, including deadly force”, which to me means that I can respond with in kind force before deadly force becomes necessary. Am I messed up?

          “My lay persons reading found no indication of this strict switch. It says “force with force, including deadly force”, which to me means that I can respond with in kind force before deadly force becomes necessary. Am I messed up?”

          I was speaking in the context of deadly force. It’s important to distinguish between deadly force and non-deadly force conflicts, because much of the self-defense law changes as one transitions to deadly force.

          If we’re talking only about non-deadly force, only four states impost a duty to retreat before the use of non-deadly force in self-defense.

          In the other 46 states, even among what we’ve been calling the duty-to-retreat states, one has no legal duty to retreat before one uses merely non-deadly force in self-defense (thus, they are effectively SYG states in the context of non-deadly defensive force).

          This is another common way that duty-to-retreat states trip strip defenders of self-defense on the issue of retreat, when these defenders would be acquitted in a SYG state:

          A defender armed with a pistol is fallen upon by an attacker using with non-deadly force. The defender is in a duty-to-retreat state, but one of the majority that do not impose that duty until the defender must decided to use deadly force. The defender thus stands his ground and meets the non-deadly attack with a non-deadly defense. So far, all good.

          The attacker, finding he is losing the non-deadly fight, decides it is time to tilt things in his favor and pulls out a knife.

          In a SYG state, the defender could simply stand his ground, pull out his pistol, and meet deadly force with deadly force.

          In a duty-to-retreat state, however, the defender must now determine if there exists a safe avenue of retreat before he can use deadly force in self-defense. If a safe avenue of retreat does exist, he must make use of it before he may defend himself with deadly force. If he fails to make use of the safe avenue of retreat before defending himself with deadly force, he will find that he is not permitted to justify his use of deadly defensive force as self-defense.

          Note that whether a state is SYG or not is unlikely to have any affect at the point of conflict. In my experience, otherwise lawful defenders ALWAYS try to get away from a deadly fight if it is safely possible to do so. If they have not retreated, it is because they simply did not perceive an opportunity to do so under the circumstances with which the attacker presented them. And SYG only ever relieves an otherwise lawful defender of the duty to retreat, for if one is not a lawful defender one is not acting in self-defense, and if there is no self-defense there is no SYG.

          All that changes is whether the defender will later find himself stripped of the justification of self-defense because. Of course, whether a safe avenue of retreat existed such that the defender should be stripped of the justification of self-defense is ultimate a decision that will be made by others, sitting in the secure safety of a prosecutor’s office or court room, using perfect 20-20 hindsight, with out the prospects of a lethal attacker looming over them.

          SGY states make the policy decision that it is not appropriate to place this burden upon the defender. Rather, is it not the attacker who should bear the burden of retreat, if anyone is to bear such an obligation?

          –Andrew, @LawSelfDefense


             
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            madmarten in reply to Andrew Branca. | February 18, 2014 at 1:46 pm

            Thanks for the replies. I appreciate it. I am sincerely trying to figure what self defense and SYG means. Because, apparently, I have fallen victim to some misunderstanding. I do notice in your descriptions and hypotheticals that you have perfectly clear good guys and bad guys. I wonder about grey areas and situations. I guess you say in your practice, that grey areas rarely happen. Do grey areas happen at all?
            Does a person attempting to use a self-defense argument bear any responsibility in trying to avoid escalating a situation to one in which he feels deadly force is necessary? Or is the 5 or 10 second “deadly force window” the only thing that matters? I am not talking about just starting a fight (NSS) but what about yelling and large gestures (not crimes).
            For instance in my driver A & B scenario, I tried to come with at least a plausible grey area case. You pretty much immediately dismissed and said in no way would this be self-defense. What if driver B (who followed A into the parking lot remember) took a step towards car A? How many steps does driver B get to take towards A, before driver A feels threatened enough to justifiably use deadly force? When I say driver A “had enough”, this is in his own mind that “hey this guy has a weapon and means me harm”, its not like anybody else will know.


         
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        madmarten in reply to Andrew Branca. | February 18, 2014 at 2:54 am

        Let me flesh out your road-rage tire iron hypothetical a little.
        Ok so driver A cuts driver B off, and driver B doesn’t like and begins aggressively tailgaiting A, flashing high beams honking horns. Driver A responds by slamming on his brakes nearly causing B to hit him. Driver A pulls into a parking lot, driver B decides he is not finished yet and follows him.
        Driver B stops in spot and sits, Driver A stops a spot or two away and exits his car and approaches the car B and starts yelling raising his arms and gets real close to window. Driver A goes back to his car and gets in. Driver A opens his glovebox gets his gun and puts it in his lap. By the time Driver A looks back Driver B is standing beside his own car (car B) with tire iron. Driver A has had enough and not waiting for him to approach, shoots driver B. Now I assume there is some witness who sees most of the whole thing.
        Now in my understanding, I believed that a driver A has *much* easier self defense case in SYG state than DTR state, and not just because he had no legal to duty to retreat at the end, but because he had no legal duty to stop escalating the situation at every turn. He legally had the right to be everywhere he was and do everything he did even thought that precluded de-escalating the situations. The prosecutor will say driver A should have not escalated the situation; and then won’t the defense attorney just say that his client had the right to stand his ground?

          “Driver A stops a spot or two away and exits his car and approaches the car B and starts yelling raising his arms and gets real close to window.’

          If you can’t see that adding this element to the narrative changes it completely, I can’t help you.

          –Andrew, @LawSelfDefense

          “By the time Driver A looks back Driver B is standing beside his own car (car B) with tire iron. Driver A has had enough and not waiting for him to approach, shoots driver B.”

          How would this be self-defense under ANY US self-defense framework, SYG or not? You don’t get to shoot someone in ANY state simply because you’ve “had enough.”

          Sheesh, where do you people come from?

          –Andrew, @LawSelfDefense


             
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            madmarten in reply to Andrew Branca. | February 18, 2014 at 3:08 pm

            Thanks for the replies. Sorry for double post of this. I don’t find edit or delete options. I appreciate it.
            I am sincerely trying to figure what self defense and SYG means. Because, apparently, I have fallen victim to some misunderstanding.

            I do notice in your descriptions and hypotheticals that you have perfectly clear good guys and bad guys. I wonder about grey areas and situations. I guess you say in your practice, that grey areas rarely happen. Do grey areas happen at all?

            Does a person attempting to use a self-defense argument bear any responsibility in trying to avoid escalating a situation to one in which he feels deadly force is necessary? Or is the 5 or 10 second “deadly force window” the only thing that matters? I am not talking about just starting a fight (NSS) but what about yelling and large gestures (not crimes).

            For instance in my driver A & B scenario, I tried to come with at least a plausible grey area case. You pretty much immediately dismissed and said in no way would this be self-defense.

            What if driver B (who followed A into the parking lot remember) took a step towards car A? How many steps does driver B get to take towards A, before driver A feels threatened enough to justifiably use deadly force? When I say driver A “had enough”, this is in his own mind that “hey this guy has a weapon and means me harm”, its not like anybody else will know.


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