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    Stand Your Ground Tag

    I imagine we've all chuckled at the mindlessness which the New York Times provides opportunities to observe the Murray Gell-Mann amnesia effect in action. From my own perspective as an expert in use-of-force law I fail to recall a single instance in which the NYT has so much as approached factual accuracy or displayed contextual understanding in a piece on self-defense laws in general or "stand-your-ground" in particular. This morning's editorial, "More Stand Your Ground Mischief in Florida" is no exception. What has the NYT Editorial Board all in a tizzy this time is a proposed change to Florida's self-defense immunity law. We covered this proposed change in detail previously here at Legal Insurrection: "Major Change Proposed for Florida Self-defense Immunity Law."   In a nutshell, currently a person claiming self-defense immunity has the burden of proving by a preponderance of the evidence that they acted in self-defense.  The proposed modification would instead require that the State bear the burden of disproving self-defense beyond a reasonable doubt in order for self-defense immunity to be denied. Generally, these arguments would be made at a pre-trial hearing, before the trial proper itself.

    So this happened: A group of five self-described scientists representing prestigious institutions of higher learning, including the Harvard School of Public Health, Washington University School of Medicine, and the Saint Louis University College for Public Health and Social Justice, decided to look for racism in Florida’s “Stand-Your-Ground” laws (hereafter, “SYG”). It will come to the surprise of no one , of course, that the team behind “Race, law, and health: Examination of ‘Stand Your Ground’ and defendant convictions in Florida” found what they were looking for. From their abstract (full abstract at bottom of post):
    Our results depict a disturbing message: SYG legislation in Florida has a quantifiable racial bias that reveals a leniency in convictions if the victim is non-White, which provides evidence towards unequal treatment under the law.
    Surprise, surprise. Well, maybe not so much of a surprise when you read how they describe their methodology for the paper -- critical race theory (emphasis added):
    We frame our study using Public Health Critical Race Theory (PHCRT) Methodology. PHCRT is a conceptual framework that builds upon critical race theory and public health theories and methods to articulate how best to understand and address social and health issues to achieve social justice for marginalized groups.
    Like a child who puts on red-tinted glasses and is shocked to discover the whole world is imbued with that color, these “scientists” donned their racist-tinted lab goggles and found the whole world imbued with racism.

    As our readers know, Andrew Branca is THE expert on self-defense and Stand Your Ground law. He also has a great deal of knowledge about 2nd Amendment and gun control issues. What you might not recall, is that Andrew originally was a commenter at Legal Insurrection. In the run up to the George Zimmerman Trial in June 2013, Andrew's comments were so outstanding that I asked him to cover the trial. Andrew's daily, live trial coverage was outstanding, and he has been covering self-defense and 2nd Amendment issues for us since. Andrew Branca German TV Stand Your Ground John Ekdahl, who writes at Ace of Spades HQ, tweeted about a video he just saw of Andrew being interviewed on German TV on February 28, 2014. We have posted the video before, but here it is again. A brilliant discussion of what Stand Your Ground is and is not, the Dunn and Zimmerman cases, and questionable statistics used to delegitimize SYG.

    I don't suppose it will ever end--the mainstream media will continue to cover trials involving deadly force, will continue to blindly label them Stand-Your-Ground cases, and will continue to demonstrate its utter ignorance of what Stand-Your-Ground actually is. The most recent example comes in the form of a Stand-Your-Ground piece written by a David Love, whose bio describes him as: "David A. Love is a writer based in Philadelphia. His work has appeared on CNN and been published by The Grio, The Progressive, and The Guardian." Looks impressive, no? Well, maybe the bio does. The piece on Stand-Your-Ground? Not so much. I realize that David is almost certainly not responsible for the headline of the post, but let's start there--after all, it's how the piece is introduced to the reading public. It's also where the piece goes immediately off the rails:  "These are the States That Have 'Stand Your Ground' Laws."  This point is then helpfully illustrated, literally, with a graphic image of the United States color coded to indicate which states qualify as "Stand-Your-Ground" states:  red-states are purportedly SYG, blue-states are purportedly non-SYG.  (That image is the featured pic at the top of this post. Interestingly, it was sourced in the Love's piece as being from al Jazeera.com.  Huh.) Before we dive into the errors of the illustrative map, however, let's take a moment to refresh our recollection on what Stand-Your-Ground actually means, legally speaking: it simply means that the state does not impose a legal duty on an otherwise lawful defender to make use of a safe avenue of retreat before they can use force in defense of themselves or another. Got it? Good. Now let's take a look at the 16 states indicated in the map as blue, and thus purportedly non-SYG that impose a legal duty retreat.

    The Orlando Sentinel reported recently on an interesting self-defense law matter currently being taken up by the Florida Supreme Court. As seems inevitable, they have of course incorrectly categorized the case as centering on the state's "Stand-Your-Ground" law. In fact, the case centers on Florida's self-defense immunity statute, and not on Stand Your Ground.  (For those interested in understanding how utterly different these are from each other, take a look at my tutorial video: LOSD University Video Tutorial 003 SD Immunity and SD "Insurance".) Florida's self-defense immunity statute is §776.032. Immunity from criminal prosecution and civil action for justifiable use of force.  It provides in relevant part:
    (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
    Statutes, of course, merely represent the stated intent of the Legislature, which does not bear the burden of actually applying them.  That task falls to the courts.  As if often the case, in the instance of §776.032 the Legislature declined (some would say "failed") to specify the precise procedures that were to be applied in determining whether a particular individual qualified for self-defense immunity.  This naturally led to months of fun for Florida's trial, appellate, and Supreme Court judges. Among the first issues that had to be settled was simply the standard of evidence to be applied to self-defense immunity, in other words how much evidence in support of self-defense was required before immunity could attach to a defendant.

    Marissa Alexander was back in court today for a pre-trial hearing on whether she will be granted yet another shot at self-defense immunity under Florida statute FL 776.032: Immunity from criminal prosecution and civil action for justifiable use of force.   In what has become an all too familiar pattern in this case, however, Duval County Circuit Court Judge James Daniel decided to punt the decision further down the calendar.  Whether to allow a self-defense immunity hearing is now delayed until August 1.

    The Issues Prompting Judge Daniel's Delay on Self-Defense Immunity Decision

    As reported at First Coast News and other news media, Judge Daniel appears to be struggling with two issues in particular. The first is whether a defendant should ever be permitted to have multiple self-defense immunity hearings.  The concern here is that defendants will simply seek successive self-defense immunity hearings every time an earlier one goes against them, resulting in long delays in trial. On this point the defense, in the person of high-profile litigator Faith Gay, is arguing that they have new evidence--notably, the changed testimony of one of the minor children at which Alexander fired her bullet, who they say is now prepared to testify that their father charged Alexander and thus justified her use of deadly force in self-defense.  Of course, this new evidence, even if true, does nothing to change the fact that Alexander had achieved a position of safety, armed herself with a firearm, and returned to the conflict, behavior utterly inconsistent with any reasonable claim of self-defense.

    Well, I've finally gotten around to launching the Law of Self Defense weekly video/podcasts, and Professor Jacobson was kind enough to let me make a post about it here. This first episode I knew I'd be struggling with IT issues--and, indeed, I am--so I kept the subject matter relatively simple. This first ~23 minute post is on a pet peeve of mine, which is Stand-Your-Ground, and the many ways in which people misunderstand, misapply, and miscommunicate this relatively straightforward legal concept. Hence: "Stand-Your-Ground: What It Is, What It Isn't, and Why It's Important." I prepared both a videocast--which functions like a slide presentation, with my dulcet tones stepping the viewer through the slides--as well as a audio-only podcast--which is essentially just the audio track of the videocast. There's nothing in the slides that I don't cover verbally, but I know some folks respond better to visual information content, so there it is. The videocast is hosted on Youtube, as that seemed the most straightforward approach: The podcast will eventually be available on iTunes (and, in fact, it's kind of halfway on there, but I'm still struggling with getting that quite right). Hopefully, by next week everyone will be able to simply subscribe to the Law of Self Defense podcasts on iTunes in the normal fashion. In the meantime, for those interested in an audio-only version without having to wait for me to sort out iTunes, at present you can listen to that via this method: http://lawofselfdefense.libsyn.com/rss

    Well, the media is still suffering from StandYourGroundPhobia., raising it in explanation of two recent killings by homeowners, that of Byron Smith in Minnesota (recently convicted and sentenced to life in prison) and Markus Kaarma in Montana. Naturally, all their scriblings truly reveal is their ongoing ignorance of what Stand-Your-Ground is (and isn't), and their perpetual obfuscation of Stand-Your-Ground with other discrete self-defense law doctrines, such as the Castle Doctrine, presumptions of reasonableness, defense of dwelling, and self-defense immunity (which they also do not understand). Indeed, some of these "journalists" have been reduced to writing euphemistically about the issue, using terms like "Stand-Your-Ground-like," in effect conceding the fuzziness of their understanding.  The latest event to spark media attention just happened in Montana, Man Who Set A Trap To Kill 17-Year-Old Intruder Invokes Stand Your Ground-Like Defense:
    Seventeen-year-old Diren Dede lost his life Sunday, while in Missoula, Montana on a high school exchange program from Germany. He was shot dead at the home of Markus Kaarma, after Kaarma set a trap for intruders by intentionally leaving the garage open and placing a purse in clear view. After motion sensors detected someone in the garage, Kaarma shot Dede. And while he has since been charged with first degree murder, he is already invoking a Stand Your Ground-like defense.
    KULR-8 Television, Billings, MT The first and most obvious error in attempting to apply Stand-Your-Ground to the Smith and Kaarma cases--indeed to ANY case taking place in or immediately around the defendant's home--is that Stand-Your-Ground is utterly irrelevant in that context.  Every state already has in place, by either statute or case law, the Castle Doctrine.  The Castle Doctrine eliminates any otherwise existing duty to retreat if you are in your home, or its curtilage (some states do suspend the Castle Doctrine if the person being defended against is also a lawfully present in the home). That's ALL the Castle Doctrine does--suspend an otherwise existing duty to retreat.

    The past several days I've been attending the National Rifle Associations's Annual Meeting in Indianapolis, having been invited to speak at the NRA's 17th Annual Firearms Law Symposium as part of the larger gathering. The Annual Meeting is a massive event, with something on the order of 70,000 people attending, hundreds of exhibiting vendors covering more than 9 acres of exhibit space, and talks by pro-2nd Amendment Senators, Governors, and television/radio personalities. Given that context, my own little talk on Stand-Your-Ground ranks perhaps among the most modest of the Annual Meeting's constituent components. Even taken just within the context of the other Firearms Law Symposium--which included such well-known civil rights scholars as Stephen Halbrook and David Kopel, as well as Indiana Supreme Court Justice Stephen David (whose talk was particularly outstanding)--I was a small fish, indeed. Nevertheless, I've received repeated requests for video of my small talk, and I aim to please. Much of the substantive content of the talk--and, really, I talk substantively only for about 25 minutes--will be familiar to those who have previously seen my Stand-Your-Ground commentary from the pro-SYG victory at the UC Berkeley debate, from my posts here and elsewhere, or from my book and seminars. In the interests of avoiding a straight-forward droning delivery of the law, I've interlaced what humor I could into the talk, and in particular the last four minutes or so consists of the "Downfall" parody that was prepared following CNN legal analyst Sunny Hostin's refusal to honor her "Zimmerman wager" with me following the Berkeley debate, as covered at length here: CNN analyst welches on bet after Andrew Branca wins “Stand-Your-Ground” Debate.

    This past Tuesday, April 22, I participated in a debate on Stand-Your-Ground hosted by UC Berkeley Law School. As you might expect, hilarity ensued. It turned out there were actually three sides to the debate. The two lawyers on the anti-SYG side of the issue were opposed to the debate proposition that "Florida state law may be flawed, but Stand Your Ground is a fundamentally sound policy that protects the innocent." I, of course, was on the pro-SYG side. My debate partner, a lovely woman and law professor, Andrea Roth, was nominally on my side, but in fact did not take a pro-SYG position. Her position would more accurately be described as "undecided on SYG." The way the debate was structured was we each had a 6 minute slot for opening statements. I spoke first (awesome). You can see my opening statements here (the full-length video of debate is at bottom of post): The way the debate winner was determined was by greatest change in audience opinion. The audience voted prior to the start of the debate, and again at the conclusion. The starting vote had me at 18, the anti-SYG side at 53, and the rest undecided.

    On Thursday, March 20, 2104, the Florida House of Representatives voted overwhelmingly (93-24) in approval of HB-89 (the so-called "warning shot" bill), and HB-7029 (the so-called "Pop-Tart" bill). These developments are reported in the Bradenton Herald, and other news sources (h/t to commenter pjm--thanks!). The Florida Senate has not yet taken a full vote on its parallel "warning shot" version of the House bill (SB-448), but their bill has easily passed their Criminal Justice committee (5-0), Judiciary committee (9-0), and Rules committee (12-1, and which made some modest changes to conform with the House bill).  The full state senate is scheduled to vote on SB-448 next Wednesday. We have previously covered this "warning shot" bill in some detail here Florida “Warning Shot” Bill Advances, as well as exploring how a "warning shot" had nothing whatever to do with the Marissa Alexander case (Angela Corey Reminds FL Legislators of Facts of Marissa Alexander Case and The Myth of Marissa Alexander’s “Warning Shot”) and fisking a hilariously error-filled post on the bill by Adam Weinstein over at Gawker (Gawker analyzes Florida’s “Warning Shot” bill, implosion follows). This local news story is a good example of how the media misunderstands and misreports the nature of the "warning shot" bill:

    E.J. Dionne, Jr., in his Washington Post piece entitled "Repeal stand-your-ground laws," presents us with yet another example of the utter inability of too many journalists to grasp the relatively simple and straightforward legal concept commonly referred to as "Stand-Your-Ground." Humorously, the first paragraph of his piece had me utterly convinced that Dionne must certainly be writing about Obamacare, despite the headline:
    The law is supposed to solve problems, not create them. Laws should provide as much clarity as possible, not expand the realms of ambiguity and subjectivity. Laws ought to bring about the practical results their promoters claim they'll achieve.
    With a lead-in like that, surely he's about to call for the repeal of the Affordable Care Act, right? Just kidding--it is, after all, the Washington Post. Instead, Dionne has decided to call for the repeal of another law about which he patently knows nothing: "Stand-Your-Ground."

    Dionne's Imagined Relevance of Stand-Your-Ground to Dunn Trial

    How can we identify his ignorance of the law he argues should be repealed, as well as its application (or, more accurately, its lack of application) in the Zimmerman and Dunn trials. Why, he's kind enough to show us, in his own words. First, Dionne writes of the Dunn trial:
    Supporters of the law say it was technically not at issue in the case, but this overlooks the obvious role it played in the trial.
    And where do we find this "obvious role" for SYG in the Dunn trial? It was mentioned in a single passing sentence--that would be ONE sentence--with no particular emphasis by defense counsel Cory Strolla in his closing argument. One mention over the course of two weeks of jury voir dire opening statements, day after day of trial, and closing arguments. One. Mention.

    Ever since the phrase "Stand-Your-Ground" caught the eye of journalists everywhere, it seems they simply cannot get enough of it. "Stand-Your-Ground" here, "Stand-Your-Ground" there, "Stand-Your-Ground" everywhere. The latest breakout of "Stand-Your-Ground-Mania" is now emerging around a tragic and apparently completely unnecessary shooting in a Tampa-area theater yesterday, as described in a piece from the Tampa Bay Times:  Stand Your Ground already an issue in theater shooting. I covered this a bit from a legal-tactical perspective over at my blog -- Legally-Sound Self-Defense Strategy Rule #1: KEEP OUT OF TROUBLE IN 1st PLACE -- so in the interests of saving time, I'll just copy over the factual description from that post:
    Sadly, yesterday the Christian Science Monitor reports on a story where what started as the most minor of conflicts ended up with 71-year-old Curtis Reeves, a former police officer in the area who had retired 20 years ago as a Captain, shooting and killing 43-year-old Chad Oulson, a fellow movie goer. (Movie theater shooting: Did a retired cop shoot a fellow moviegoer for texting?) Both men, each accompanied by his wife, were attending the movie theater to view the just-released movie “Lone Survivor.” Naturally, before the movie itself began the audience was “treated” to s series of trailers for other upcoming movies. While these trailers were being run, Oulson was texting on his phone. Reeves, sitting behind Oulson and presumably disturbed by this activity, told Oulson to stop texting. Oulson replied that he was checking on the status of his 3-year-old daughter.

    Marissa Alexander's motion for bail was left undecided today, when the Judge responsible for the decision decided to delay further action on the matter until January 15, 2014. Alexander's attorney had made a request for bail in anticipation of her re-trial on charges of aggravated assault, using a firearm, against her estranged husband. https://twitter.com/SeniABC/status/400744956736061440 Alexander was granted a new trial early this year after her conviction for aggravated assault (with a firearm enhancement) was overturned on the grounds that the self-defense jury instructions were defective. Alexander's conviction was based on evidence that in the course of a heated argument with her estranged husband she retrieved a handgun from the garage, returned to the interior of the home, and fired a shot past his head and into the wall behind him (while his two minor children stood by his side). The bullet penetrated through the wall and sped across the next room until embedding itself in the ceiling. Some have sought to characterize the shooting as a mere "warning shot" or the "shooting of a ceiling," a characterization we've previously debunked here:  The Myth of Marissa Alexander’s “Warning Shot”. Alexander always seemed a poor candidate for bail given the prior disrespect she has shown the criminal courts. In addition to the core aggravated assault for which she was charged and convicted, Alexander also allegedly induced her estranged husband to submit false exculpatory testimony on her behalf (testimony he later retracted), repeatedly meeting with him in violation of an order of protection intended to keep her away from him and his children. She later assaulted him a second time, albeit this time without a weapon.

    Last evening the Florida House conducted a public hearing, judiciary committee debate, and committee vote on HB-4003, which would have done away with Florida's Stand-Your-Ground law by repealing Florida statute 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm. The outcome was that HB-4003 was soundly defeated in committee, thereby ending the effort to repeal Stand-Your-Ground in this year's legislative session. 776.013 is a multi-part statute that contains not only the primary "Stand-Your-Ground" statute, but also presumptions of reasonable belief of fear of imminent death or grave bodily harm.  Thus, if successful, HB-4003 would not only have repealed "Stand-Your-Ground" but also have made it more difficult for law-abiding armed citizens to defend themselves in home invasion, carjacking, and kidnapping scenarios. HB-4003 was proposed by Rep. Williams, who is not a member of the judiciary committee and therefore not entitled himself to vote on the proposed bill in this setting. [caption id="attachment_70237" align="alignnone" width="407"](Florida House Rep. Alan B. Williams) (Florida House Rep. Alan B. Williams)[/caption] Not surprisingly, the proponents of HB-4003 consisted mostly of a couple of legislators citing bad statistics, isolated anecdotes, and misinformation; the parents of young black children killed in acts of violence, like Trayvon Martin; and a seemingly endless series of high school and college students who were presumably receiving course credit for appearing and pathetically mischaracterizing Stand-Your-Ground.

    This morning Democratic Senator Dick Durbin of Illinois held a US Senate hearing nominally on the subject of Stand Your Ground laws. Here I'll just share an overview of the testimony, along with my own general observations. (More detailed posts will likely follow.) [caption id="attachment_69289" align="alignnone" width="450"]US Senate hearing: "Stand Your Ground:  Civil rights and Public Safety Implications of the Expanded Use of Deadly Force" US Senate hearing: "Stand Your Ground: Civil rights and Public Safety Implications of the Expanded Use of Deadly Force"[/caption] My first general observation is that the anti-SYG folks were, as experience would suggest, big on emotion and small on actual facts, law, or data. One of the anti-SYG witnesses, Professor Sullivan from Harvard Law School, did raise some actual data--but when these were utterly destroyed by the later testimony of Dr. John Lott and Elliot Shapiro of CATA, Professor Sullivan was swift to discount the use of data (which he himself had introduced into the testimony) and instead focus on the "real people" behind the data. In sharp contrast, the testimony of the pro-SYG speakers was focused and direct. Second, the anti-SYG folks persistently conflated the legal concept of Stand Your Ground with utterly discrete legal concepts, such as presumptions of reasonableness and civil/criminal immunity.
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