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Stand Your Ground Tag

An acquittal in a murder case out of Louisiana provides a real-time illustration of the difference between the application of what I refer to as “hard” Stand-Your-Ground provisions versus “soft” Stand-Your-Ground provisions. (Details here are as reported by The Advocate and other news sources.) The facts of the case involve a bare-handed attack by a large aggressor against a smaller defender, one Jacob Westbrook, who was armed with a knife. Westbrook, who testified at trial that he had never been in a fight before, stabbed the aggressor once in the chest after, he says, the larger and stronger aggressor punched him in the head. It is noteworthy that the aggressor was a guest, perhaps little wanted, in Westbrook's home at the time of the conflict.

This Case of the Week is not so much a case of self-defense law as it is a case of mischaracterization of self-defense law. As sure as the sun rises in the East and sets in the West, the media will continue to mischaracterize “Stand-Your-Ground” in terms of both actual application and as legal doctrine. A recent example came across my desk this week from a publication named “Black Voice News,” in an article you can find by clicking here.

This week’s case is not so much a case as it is a cautionary tale about the risks of relying upon the purported use-of-force law expertise of others based solely on their job title, and dangers of not you yourself being educated on that law. I warn students in every class that certain job titles, like lawyer, cop, or firearms instructor, do not guarantee that a person in those fields knows a darned thing about use-of-force law.

Michael Drejka, the 47-year old shooter of 28-year-old Markeis McGlockton over a July 19 dispute about a handicap parking spot, has been arrested and charged with manslaughter, reports the Tampa Bay Times and other news sources.  He is being held on $100,000 bail in Pinellas County Jail.
[AFB: Update, just reading the charging document closely now, and see Drejka was charged under Florida Statute §775.087(1)), Florida's so-called "10-20-Life" mandatory minimum sentencing law, the one that caught up Marissa Alexander. I'll discuss the details of this in more detail in a future post, but in effect it means that if convicted under that provision of the law Drejka is looking at life in prison, even though charged "merely" with manslaughter rather than murder, because manslaughter is a first degree felony and this killing involved the use of a firearm.]
We previously covered this case immediately after it occurred here:

When I tell you that you must assume that everything the news media has to say about self-defense law and events is 100% wrong until proven otherwise, this is why: CNN: "What you need to know about 'stand your ground' laws". The errors on "Stand-Your-Ground" in particular and self-defense law in general, whether these errors are borne of ignorance or malice, are almost too numerous to count. But let us make the effort, shall we?

“Stand-Your-Ground” was back in the headlines against over the just-concluded Independence Day weekend, thanks to a 14-page decision by Miami-Dade Circuit judge Milton Hirsch that recent legislative changes to Florida’s self-defense immunity law were unconstitutional, reports the Bradenton Herald newspaper and other sources. (That decision is embedded below.) Specifically, the recently signed law switched the burden of persuasion on pre-trial self-defense immunity from the defendant to the state, and changed the standard of evidence required from a preponderance of the evidence to one of clear and convincing evidence. (We wrote about these changes more extensively here: “Florida Changes Burden of Proof of Self-Defense Immunity.”)

Curtis Reeves has been denied legal immunity from prosecution and civil suit over his fatal shooting of Chad Oulson, in an order issued today by Judge Susan Barthle (that order is embedded at the bottom of this post). Reading Judge Barthle’s order, however, suggests that her legal analysis may be sufficiently defective so as to render this denial of immunity a miscarriage of justice, thus warranting another self-defense immunity hearing in which the proper legal standards and analysis are applied. We have previously covered this case here at Legal Insurrection in numerous posts, including:

It was three years ago last month that retired police officer Curtis Reeves, then 71 years old, shot and killed 43-year-old Chad Oulsen in a Florida movie theater. The case became known as the "popcorn shooting" because the shooting allegedly happened over spilled popcorn. Reeves has been charged with second degree murder and aggravated battery.  He has pleaded not guilty to both charges and raised the legal defense of self-defense. As usual, the media has been slathering the phrase “Stand-Your-Ground” all over this case, when in fact the case has nothing to do whatever with “Stand-Your-Ground” or any legal issues of retreat. What is relevant to this case, however, as it is to pretty much any self-defense case in Florida, is self-defense immunity. Yesterday was the first day of Reeves’ self-defense immunity hearing, taking place in a Pasco County courthouse, which we’ll get to in a moment.

The scientific journal JAMA Internal Medicine has published a paper utterly devoid of scientific or public policy merit, fraught with abject error and ignorance, and utterly lacking any arguable purpose other than to deceive gullible readers about the nature and merits of Florida’s Stand-Your-Ground law. The JAMA study follows another supposedly scientific study by others I have previously debunked: Published on Monday, Nov. 14, the JAMA paper is entitled: "Evaluating the Impact of Florida’s 'Stand Your Ground' Self-defense Law on Homicide and Suicide by Firearm: An Interrupted Time Series Study." How this paper passed peer review and why it has not already been withdrawn is a question left to the reader.

Missouri lawmakers have overridden a veto to allow concealed carry (Missouri already had open carry) and to grant more legal rights for self-defense. KSDK reports:
Missouri lawmakers have overridden a veto of a wide-ranging guns bill that will let more people carry concealed weapons and give them greater legal rights to defend themselves. The Republican-led Legislature enacted the law Wednesday by a 24-6 Senate vote and a 112-41 vote in the House. Both exceeded the two-thirds majority needed to override the veto of Democratic Gov. Jay Nixon. The legislation will allow most people to carry concealed guns without needing a permit. That means they won't have to go through the training currently required for permit holders. Missouri will join 10 other states with what supporters describe as a "constitutional carry" right. The measure also expands legal protections for those who use deadly force to defend themselves in both public and private places.

This past Monday we wrote about the start of the re-trial of retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail after shooting a neighbor over a dispute about the neighbor's noisy party. Rodriquez had claimed self-defense justification for the killing.  That prior post can be found here: Retrial Begins for Firefighter Who Selfied “Stand-Your-Ground” That re-trial ended yesterday with the jury returning a verdict of guilty of murder after three hours of deliberation, reports the Houston Chronicle. Rodriquez first murder conviction in this case was overturned because of a somewhat subtle error in the jury instructions on self-defense, as covered in some detail in a post last December, New Trial for Man Who Video Recorded Own “Self-Defense” Shooting.   No one knew, of course, whether the mistaken jury instruction had led the first jury astray and resulted in an improper guilty verdict, but a defendant is entitled to correct jury instructions and so a re-trial was ordered on appeal. This second conviction seems completely unrelated to the concerns surrounding the first--an issue of the timing of when Rodriquez may have openly displayed his concealed carry pistol--but instead focuses strictly on the issue of provocation.
"This case is about provocation, pure and simple," prosecutor Kelli Johnson told jurors in closing arguments earlier in the day. "The law doesn't allow you to create a situation and then claim self-defense."

A couple of months ago we posted here about the effort of Florida legislator Dennis Braxley to change Florida's self-defense immunity law: Major Change Proposed for Florida Self-defense Immunity Law.   Under the proposed change a person claiming self-defense immunity for their use of force against another could be denied that immunity only if the prosecution could disprove self-defense beyond a reasonable doubt. That effort has now failed, reports the Bradenton Herald. Current Florida law will remain in effect, requiring that a person claiming self-defense immunity bear the burden of proving self-defense by a preponderance of the evidence. That legal standard had been applied by the courts for several years, and then was explicitly affirmed by the Florida Supreme Court in a 5-2 decision this past July. That decision, Bretherick v. State, 170 So. 3d 766 (FL Supreme Court 2015), is embedded below.

A re-trial begins this week in Houston for retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail, reports the Houston Chronicle.  Rodriquez had unsuccessfully argued self-defense at trial. The notable oddity of this case was the fact that Rodriguez had videotaped himself rather bizarrely confronting loudly partying neighbors. Rodriguez would ultimately shoot and kill one of those neighbors, Kelly Danaher. I first wrote about this case back in December of 2014, after the appellate court ruled that Rodriguez was entitled to a re-trial: "New Trial for Man Who Video Recorded Own 'Self-Defense' Shooting." The grounds for ordering a re-trial was an error in the trial judge's instructions to the jury on Texas self-defense law. As I wrote at the time:
The facts of the case are somewhat ambiguous on detail, but in general they consist of an amalgam of a loud, drunken party, long-simmering neighborhood disputes, and incredibly poor judgment on the part of a retired fire-fighter in electing to exercise his concealed carry license by bringing his pistol to a confrontation. A tragic outcome was entirely predictable.

I know I promised that my prior post would be my last on the thoroughly debunked "scientific" paper, "Race,law, and health: Examination of 'Stand Your Ground' and defendant convictions in Florida." The debunking took place in these posts: But then, well, THIS happened: Screen Shot 2015-11-05 at 4.33.05 PM Yep, I found two of the paper's authors in my Twitter timeline:  Melody S. Goodman and Cassandra Arroyo-Johnson, both of the Division of Public Health Sciences, Department of Surgery [!], Washington University School of Medicine.

Last week here I wrote a post about a “scientific” study of Florida’s Stand-Your-Ground (SYG) law. That paper was published in the Elsevier journal “Social Science & Medicine.” The paper: “Race, law, and health: Examination of ‘Stand Your Ground’ (SYG) and defendant convictions in Florida” (Social Science & Medicine, Volume 142, October 2015, pages 194-201; pay-walled ) My post: “New “Scientific” Stand-Your-Ground Study Is Ignorant of the Law” In that paper the authors applied a Public Health Critical Theory Methodology to the question of whether Florida’s SYG law has a quantifiable racial bias. The key finding of the paper is that a “defendant is two times … more likely to be convicted in a case that involves White victims compared to those involving non-White victims” in the context of Florida’s SYG law. This finding was the result of statistical analysis conducted on a set of 204 purported SYG cases drawn from a total collection of 237 purported SYG cases collected by the Tampa Bay Times, a regional Florida newspaper.
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