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.

The editorial begins on the wrong foot immediately by using the phrase “stand your ground” to mean “self-defense immunity,” but journalists in general do that with such mind-numbing frequency that I’ve grown weary of pointing out the error. So let’s move on, to use a favored NYT phrase.

Unmentioned in the editorial is the fact that once a self-defense case actual moves to the trial stage the State will, even under existing law, bear the burden of disproving self-defense beyond a reasonable doubt.  Indeed, that’s how the burden on self-defense is allocated in 49 of the 50 states (the exception being Ohio).

The real humor of the editorial is found in what it does say, however, so let’s take a look.

Senate committees approved legislation this month that would relieve defendants of the need to prove that they were in fear for their lives.

In order to make a claim of self-defense the claimant must first meet his burden of production on every required element of that legal defense.  These include that the claimant was not the aggressor, that the threat the claimant faced was imminent, that the claimant used only proportional force, and that the claimant was in reasonable fear of harm.  (In duty-to-retreat states there must also be evidence that the claimant had no safe avenue of retreat.) The failure to meet this burden of production means the defendant simply has no claim to the legal defense of self-defense.

This remains true even under the proposed version of Florida’s stand-your-ground law.  To say that the prosecution has the burden to disprove self-defense beyond a reasonable doubt in order to strip the defendant of self-defense immunity is merely to say that the defendant must ensure there exists at least a reasonable doubt on each of those required elements.

Is the prosecution’s burden much greater than that of the defendant? Certainly. But it’s the same burden we require prosecutor’s to bear when they seek to have a defendant found guilty of almost any alleged crime:  the jury is instructed to acquit the defendant unless the prosecution proves each and every element of the criminal charge beyond a reasonable doubt.

Under the proposed law, prosecutors would be obligated to prove to a judge that the self-defense claim was without merit before a case could proceed to a full trial.

But of course the State is already obligated to prove to a judge that the self-defense claim is “without merit.”  The only difference is how we are defining “without merit.” Under the current law the pre-trial claim of self-defense immunity  is said to be “without merit” if one of the required elements is disproven by a preponderance of the evidence.  Under the proposed change the pre-trial claim is said to be “without merit” if one of the required elements is disproven beyond a reasonable doubt (the same standard that will be applied at trial).  Of course, the NYT makes no mention of this distinction, and I very much doubt they are aware of it.

Since Florida pioneered the law in 2005, more than 20 states have copied it, even though its history is rife with sadly lethal incidents.

In fact, the large majority of states–34, to be exact–impose no legal duty to retreat before one may use force in self-defense, and thus function as Stand-Your-Ground states.  Included among these are such Tea Party strongholds as California. Indeed, California is among the most vigorous of stand-your-ground states, as it not only allows one to stand your ground but also to pursue one’s attacker under some circumstances.

Even among the 16 states that do impose a generalized legal duty to retreat before acting in self-defense, all of them also allow for circumstances in which they also allow a defender to “stand their ground.”

An examination of 200 cases in 2012 by The Tampa Bay Times found the law had been used to defend drug dealers, gunmen and other violent offenders, with many of them initiating conflict but still going free.

We’ve debunked this Tampa Bay Times “examination” numerous times already here at Legal Insurrection, and just a few days ago took apart a purported “scientific” study based on the newspaper’s collection of alleged “stand-your-ground” events:  “New “Scientific” Stand-Your-Ground Study Is Ignorant of the Law”  (Expect a further debunking of that study here tomorrow, by the way.)

What’s particularly interesting is that the NYT seems offended that the law has been used to defend criminal defendants.  Well, duh, that’s what legal defenses are for.  It’s not been my observation that the NYT is all that gung ho about denying legal due process to drug dealers, although they certainly have no hesitation in arguing for such denial against their perceived political opposition.

In aiming to compound the deadliness of the current law, Florida can only worsen its reputation as the Gunshine State.

How cute: the NYT writes “Gunshine State” as if it’s a bad thing.

The issue before the Legislature should be full repeal of the law, not another gift to the gun zealots.

This has been attempted innumerable times since the Zimmerman trial (itself not a case in which stand-your-ground was applied nor in which self-defense immunity has ever been sought), and has each time been resoundingly defeated.  The Florida legislature, and by extension their constituents, are very, very fond of both stand-your-ground and self-defense immunity, and neither is likely to go anywhere any time soon.

All that said, and as noted in our own writing on the proposed change to Florida’s self-defense immunity law, the change is not a minor one.  Certainly it will enable successful claims of self-defense immunity by users of force who would have failed to gain immunity under the current law.

Some of these who will qualify for self-defense immunity under the new law will be people who should, in fact, be held criminally liable for their use of force.  Others, however, will be people who would otherwise be wrongfully brought to trial by overzealous and politically-motivated prosecutors, even where there is little hope for obtaining a conviction at trial (as was the case in the Zimmerman trial).

Indeed, this proposed change to Florida’s self-defense immunity statute is a direct response by the legislature to constrain these abusive prosecutors and their politically-motivated trials.

What the NYT fails to recognize is that what Florida has is not a “stand-your-ground” problem, it is an “abusive prosecutors” problem.  Had prosecutors ceased their over-reaching in self-defense cases in an effort to curry political favor this proposed change to the state’s self-defense immunity law would never have seen the light of day.

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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