By now some of you may have heard about the Marissa Alexander case in Florida.
Many people are trying to twist the facts of this case in a fashion that will be familiar to the rational among us who watched the Zimmerman case.
Essentially they want to know why Florida’s stand-your-ground law was sufficient to win Zimmerman an acquittal yet when applied in the Alexander case it produced a speed-of-light guilty verdict in a mere 12 minutes (did the jurors even bother to sit down, or were they putting on their coats while coming to consensus?), and a sentence of 20 years.
The essential facts of the Alexander case are as follows. She and her husband, Gray, were engaged in a heated verbal dispute in the presence of his two children. There seems to have been little if any physical confrontation, but whatever might have occurred was of a non-deadly nature. At some point Alexander walked past Gray and the children into the garage, where she obtained a gun. She then fired the gun at, or in the direction of, Gray and the two children.
Alexander was charged with multiple counts of aggravated assault, and asserted a “stand-your-ground” defense.
What IS Stand-Your-Ground, Anyway?
Before we compare this fact situation to Zimmerman, we must first ensure that we all understand just what “stand-your-ground” means.
Traditionally, it was required that you take advantage of a safe avenue of retreat, if such was reasonably available to you, before using deadly force in self-defense. This was what is referred to as a generalized duty to retreat. It always had exceptions, such as the Castle Doctrine which lifts the duty when you are in your home.
The “stand-your-ground” law expands the scope of the Castle Doctrine beyond your home to every place you have a right to be. So, even if there were a safe avenue of retreat reasonably available to you, you no longer have a legal duty to attempt to make use of it before using deadly force in self-defense.
The duty to retreat itself, however, only applies where safe retreat is possible. If there is no safe avenue of retreat, there is no duty. If there is no duty, the “stand-your-ground” statute that relieves you of that duty is irrelevant.
Why Stand-Your-Ground Was Irrelevant in Zimmerman Case
This was this situation in the Zimmerman case. When George Zimmerman made the decision to use deadly force in self-defense he had already been trying to escape for at least the 45 seconds he was screaming for help and getting his head smashed into a sidewalk. There simply was no reasonably safe avenue of retreat available to him. Therefore he had no duty to retreat, and without any such duty “stand-your-ground” has no role to play in lifting that duty.
Why Stand-Your-Ground Is Also Irrelevant in the Alexander Case
So, now that it is clear that “stand-your-ground” was irrelevant in the Zimmerman case, how might it apply in the Marissa Alexander trial?
It simply doesn’t.
Here, if we consider the facts in a manner most favorable to Alexander, there was an initial physical, non-deadly conflict with her husband. Perhaps we can even assume that her husband was the aggressor in that conflict. In that case he may well bear legal liability for that non-deadly fight.
Alexander, however, took things to another level when she retrieved her firearm. She escalated a non-deadly confrontation to a deadly confrontation. In the eyes of the law this is effectively a second, separate fight, one in which Alexander was the aggressor.
And how does being the aggressor affect one’s right to “stand-your-ground”? It obliterates it. Florida’s “stand-your-ground” provision, 776.013(3), applies ONLY to “[a] person who is not engaged in an unlawful activity and who is attacked . . . ”
Here Alexander WAS engaged in criminal activity–she initiated a deadly force confrontation–and it was not she who was attacked but she who was doing the attacking. The Court tossing out stand-your-ground in this Florida case was not even a tough call, as “stand-your-ground” was inapplicable on its face.
Marissa Alexander, awaiting conviction
Note: For a much more detailed discussion of the Alexander case, including a great deal more background and context than I have included here, I suggest a piece by Sean Davis at mediatrackers, “No, Marissa Alexander’s Conviction Was Not a “Reverse Trayvon Martin” Case in Florida”.
Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available at www.lawofselfdefense.com and also at Amazon.com as either a hardcopy or in Kindle version.
You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.
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Comments
Of course this is framed as the law being racist because Alexander was black and convicted while Zimmerman was white Hispanic and acquitted. The fact of the matter is that blacks benefit from Florida’s SYG law at a much higher rate than whites or the population in general.
She sure did escalate the fight to a new level.
Got your book yesterday Andy, looking forward to reading it.
Since when do facts matter to liberals?
Please stop calling them “liberals.” I believe the more appropriate term would be either “statists” or “social engineers”: http://americanglob.com/2013/07/15/whoa-greta-van-susteren-schools-trayvon-martin-family-attorney/
“Progressives.”
Marxists is a better description. They are not liberals because they do not believe in a free market economy.
I tend to go with “leftists”, or for the cases when they’re not-so-left, “authoritarians”.
“Since when do facts matter to liberals?”
True. It’s all about “feelings” and how a bigger government can make everything better.
If someone is in your home unlawfully there is a presumption of imminent danger. If it had not been a family member or friend she may have been justified in retreating to get a weapon. FL 776.013 reads:
There was some talk that there was a restraining order against the victim of this attack.
I’d be fascinated if Andrew has any further comments.
From what I read, she wasn’t even living in that home at the time. She had moved out and went there to talk to her husband.
She said that garage door was faulty and she couldn’t get out, but the front and back doors of the home were working normally.
So the prosecutors were saying she could have left the house. Then again, it was Angela Corey so who knows what the truth is.
Angela Corey. Wow !!
The sentence seems harsh. The law needs to take into account the degree of over reaction.
IIRC, Corey offered her a plea deal of 3 years, which Alexander refused, preferring to take her chances at trial. Once found guilty at trial, the mandatory sentencing law kicked in and the judge’s hands were pretty much tied.
For the statutory language you quote to be relevant in this case there must have been a forcible entry of the dwelling by Gray.
If evidence of this exists, I’d like to see it.
If not, you’ve missed the point of the statutory language.
–Andrew, @LawSelfDefense, #LOSD2
Thank you Andrew.
Aside: Am I the only one that thinks mandatory sentencing violates separation of powers?
Am I wrong?
Then there’s the issue of whether it’s a good thing, apart form it’s legality.
So many issues with the criminal justice system worthy of discussion…but, no–we have to talk about RACE!
You are not the only one. Even knowing the facts of the case and thinking this woman was not legally justified; I think 20 years is ridiculously excessive. It’s all part of the plan to criminalize any kind of gun use and make the general public afraid to even own a gun.
Elaborate your point, please. I don’t get what you are alluding to here.
Well, for starters, if it’s fundamentally wrong to “legislate from the bench”, so too is it to sentence individual defendants in individual cases from the floor of the State Capitol, is it not?
There is nothing in “separation of powers” that leaves sentencing in the purview of the courts.
Legislators determine the meaning of laws, and they are free to determine the consequence for breaking them. They have always done this, including when they only denominated a crime as a misdemeanor or felony, or a degree of felony when those became the norm in criminal codes.
All that said, I am not a fan of mandatory sentencing. Guidelines, yes. And those only exceeded for good cause shown, reviewed say by a review panel.
The Supreme Court has held that it’s unconstitutional to have a mandatory death penalty crime statute. They haven’t addressed other mandatory sentences. I agree, however, that it is not a separation of powers issue.
You have to understand the evolution of minimum sentencing for offenses involving firearms. In the 1980s and 90s, parts of Florida were in the midst of the Cocaine Cowboy Wars and then the crack cocaine epidemic. Both of these involved heavily armed criminal gangs who showed little reluctance to fire on non-participant civilians. It also saw a rise in handgun violence by both users and suppliers of the drugs. But, this did not stop judges from handing down minimal sentences for crimes involving firearms use. Two significant things happened during this time. Responding to public pressure, the Legislature preempted firearms regulation throughout the state and instituted a standardized system for the state issuance of concealed weapon and firearm licenses in 1987. This was necessary because, under the law at that time, individual county commissions were responsible for issuing concealed carry permits and, not only was carry under such license restricted to the county of issuance, the granting of such permits varied widely from county to county. As the violence continued, the 10-20-Life sentencing law was enacted. This was due to the public perception that judges were giving minimum sentences to violent criminals with little regard to their history and actions. Both were measures designed to discourage firearms violence and to increase the security of the individual citizen of the state.
In practice, most SA offices would routinely offer persons charged with such crimes as aggravated assault and, sometimes, aggravated battery or even armed robbery, with a firearm, the option of pleading guilty to the same charge without stipulating the use of a firearm. In most cases, the defendant accepted the plea and so did the judge. This neatly circumvented the will of both the populous and the legislature.
In Corey’s case, it is my understanding that such an offer was made and Corey, and her attorney, declined. She went to trial and the jury found her guilty.
Was it a just verdict? It depends upon who you believe, as there was little physical evidence to support either account. Should she have been sentenced to 20 years in prison? Probably not.
But, this whole situation was caused by jurists, who routinely handed down ridiculously minimal sentences and failed to heed the rumblings that the populous was not happy with that practice.
Correction: It should read Alexander’s case. Corey’s office prosecuted.
Indeed, Marissa Alexander refused the plea bargain. Her attorney failed to understand that this was not a stand your ground case. It could never be one because she went to her car and got the gun.
“Her attorney failed to understand that this was not a stand your ground case.”
I have to wonder if she has grounds for appeal on “ineffective representation” or whatever it’s called because of this, because it doesn’t take a rocket scientist to see that SYG doesn’t apply in her case.
It’s only “ineffective representation” when the verdict is guilty, eh?
Obviously guilty client fails to accept a plea bargain, chooses to roll the dice in court and loses. Can she appeal based on a claim of “ineffective defendant”?
When the client leaves her attorney only one option to mount any defense at all, to attempt to bamboozle the jury with a red herring claim under the Stand Your Ground law, is that really “ineffective defense” when the jury sees through the gambit? (Answer: No. If she can’t do the time like a man, she should’na done the crime.)
Thanks for taking the time to spell out the background of these laws; the general conditions that set the stage for them coming into being in the first place, Mac.
Greta thinks the difference of self defense and SYG is small, because safe retreat has to be reasonable in any case. Her example, if guy chasing you with axe, you don’t have to try to outrun him first. So reasonable safe retreat and reasonable fear for life are close to the same. (just her point, ianal)
It will be nearly impossible for any finer points of law to penetrate the media diatribe, but still important.
Just this morning FOX had Benjamin Carson on, and he spewed several talking points in his “defense” of Zimmerman. If guys like Carson get it all wrong, only the fringe will ever get the finer points. But I appreciate having information on the fringe. 🙂
Carson said of Zimmerman:
Good grief
Two things:
-it demonstrates how deep and how thorough the “narrative” has been pushed into the American psyche.
-not everyone had the time or interest to follow the trial in depth.
I have no problem with people not taking the time to follow the trial, but those people really should just shut their mouths and not make comments on it. The arguments from ignorance all seem to come from the same side, though, so I do not believe it’s accidental.
Since when has ignorance ever stopped someone from expressing their opinion?
yeah … not sure why they spent the time asking Carson his views. Surely he was briefed ahead of time that this question would be asked.
He expounded on it as if he knew what he was talking about, which really diminished my opinion of him as someone capable of being/becoming a conservative spokesman.
He should have either researched it (maybe going to some more conservative blog 🙂 ), or he should have more honestly led with “I really didn’t follow this trial”. Instead he essentially blamed Zimmerman’s carrying.
“The arguments from ignorance all seem to come from the same side, though, so I do not believe it’s accidental.”
Fen’s Law: The Left doesn’t really believe in the things they lecture the rest of us about.
ie., this isn’t about any double standard re Marissa Alexander, its about leaving citizens to the mercy of roving brownshirt gangs, entirely dependent on the State for protection and defense.
Browndog’s Law: The Left does really believe in opposite of the things they lecture the rest of us about.
Come on, be real — stupid arguments and idiotic opinions come from both sides of the spectrum, in equal numbers. Sometimes one side favors the correct opinion; sometimes the other. The problem is when you’re an ideologue you stop thinking clearly and rationalize everything that contradicts your opinion. That’s why, no matter how persuasive the evidence, flat-earthers will never accept the reality of a spheroid planet
No Jay, you are talking about something else.
Fen’s Law is the result of a decade of being lectured to by feminists about sexual harassment in the workplace. Then along comes Clinton: sexual discrimination (Jones, Lewinsky), sexual harassment (Jones), and sexual assault (Wiley). All-of-a-sudden the feminists decided that “its just about sex, MoveOn.”
This was not a case of (as you say) of “ideologues who stop thinking clearly and rationalize everything that contradicts their opinion”, this is about ideologues ditching what they claimed were their First Principles when once those principles were inconvenient. As such, the only explanation for their behavior is that they didn’t really believe in all that stuff to begin with.
Fen’s Law is helpful because it reminds you to not waste time and energy debating issues the Left claims they believe in. They don’t really believe, so you’ll never convince or counter them. Instead, look at what their goal is in each specific instance: this is not about any double standard they see re Marissa Alexander, its not about the cruel 20yr minimums for use of firearms during a felony… its about the basic right of individuals to defend their life with lethal force.
I agree…and I let local media outlets and personnel have it every time I hear them repeating the discredited memes. They have a responsibility to report things factually now…even if they didn’t initially. To do anything less is laziness.
I am curious: Did anyone on Fox set Benjamin Carson straight or did they let him get away with his mischaracterization?
I doubt very seriously they set him straight. They don’t set straight their own in house analysts/contributors when they repeatedly misstate facts. Just last night I went on a rant about Juan Williams in the comments on another post to this blog. I seldom if ever go on a real rant on a blog but his comments finally got the best of me.
(PS If anyone wants to read the rant I can repost it here, lol)
I liked it… you should re-post it…
THE RANT
Juan Williams needs a good ass kicking on this issue. I find him out in left field on some issues but I often listen to him and give him the benefit of the doubt that at least he is being honest in his assessments though I might disagree with his conclusion. Nothing wrong with that. It is more in the line with a debate where people have different positions.
In the Zimmerman case though he is completely off the wall. He says he honors the trial, the legal process, and the jury’s decision but that is not enough because there has to be Justice for Treyvon.
But the worst thing is he spouts of a rendition of the case that I swear was the mobs position in March 2012 when there was limited information in the public. The only update he has is ‘Zimmerman was told to stay in the car’. It is as if he has heard or learned nothing else about the case since then. He “knows” now GZ followed after he was told not to then confronted Treyvon and a fight broke out and GZ shot him. And he knows Zimmerman trained in MMA. I’m sure he knows that because usually mentions it twice. That’s sort of new information so maybe he has changed his story a little since since March 2012. I’ve heard him repeat all this several times almost verbatim.
I almost forgot a couple of other things he knows for sure. TM was a young innocent boy without a gun and Zimmerman had one. And I think he knows TM went to a store to buy some skittles but I’m not sure about that.
Every time I hear him rattle off that BS story I want to go Treyvon on his ass and punch him in the face.
Hey, Baker, there was “Justice for Trayvon” – at least as much as there can be short of the Final Judgment. Those who put on such a show of concern for the Thug-Father’s might’a been son should be going to Someone way, way above Obama’s pay grade and ask Him for Mercy for Trayvon.
No .. Steve Ducey (?) didn’t challenge him.
Carson even started with Trayvon’s view … he was being pursued, so the human response is “fight or flight”. So Benjamin apparently felt Trayvon was somewhat justified in lying in wait to ambush GZ, though he thinks it was just a fight … just a ass whoopin’ I guess.
I got the feeling he felt he was being balanced, analytical. But he was just spewing ignorant perspective. It was not a fight or flight response. Trayvon didn’t want to be watched, was looking for a fight, lied in wait and assaulted. There was never “fight or flight”.
From the “the left always accuses others of what they themselves are doing” files … George was not a “wannabe cop”, it was Trayvon that was a “wannabe crips member”. He was perhaps ready to “make his bones” when he saw that gun.
Carson uses a very false assumption:
“on duty as a night watchman” really?
That is not even a fact in the case.
This morning’s Union-Tribune has an article that explains what is happening.
http://www.utsandiego.com/news/2013/jul/17/tp-holder-rips-stand-your-ground-laws/
Eric Holder is now using the Zimmerman case as a bad example of Florida’s stand-your-ground law, and it’s not until the end of the article that you find out that the doctrine played no part in the case, at least as far as the prosecution and defense teams were concerned:
“Though stand-your-ground was never raised during trial, Judge Debra Nelson included a provision about the law in the instructions that allowed jurors to consider it as a legitimate defense.”
This administration is looking for excuses to do what it wants, and if the facts don’t fit, it will simply pretend they do.
In his speech Holder invoked, and I quote, “the common sense and age-old requirement that people who feel threatened have a duty to retreat”. I’ll believe that he actually believes a word of what he said the moment he advocates holding police to exactly the same standard. “Officers, if you’re threatened, if someone pulls a gun on you, you ‘have a duty to retreat’, run away!”.
Every reason that’s obviously a bad policy for police applies as well to private citizens.
Why has “stand your ground” become stuck in the craw of liberals?
Because stand your ground, yet another inalienable right, was attacked and made illegal by the libs “duty to retreat”.
“duty to retreat” got a lot of innocent people killed or imprisoned, so it was simply repealed in most States.
“Why has “stand your ground” become stuck in the craw of liberals?”
Because they’re bullies. Bullies cannot stomach the idea that their victims might fight back.
Don’t leave out of your bully list the Republican Governor and Attorney General of Florida who started the legal prosecution ball rolling (and still haven’t said one word in apology) and the Republican Special Prosecutor who is still persecuting George…
They’re criticizing liberals, not Democrats.
Half are bullies. Half are starry-eyed pacifists who think (wait, sorry, “feel”) that unilateral disarmament and submission will cause aggressors to get all misty and see the error of their ways and come in for a group hug. Resisting violence with violence just begets more violence, don’t’cha know.
And another half (yeah, yeah) cling to the notion that you should have compassion for the poor misunderstood kid with the package of Skittles, selflessly risking your own life to ensure his safety by not shooting him as he’s trying to crush your skull.
Stand your ground stands are the very core of effective self-defense. In many states, self-defense is an affirmative defense that must be established by a preponderance of the evidence. That is the standard for an immunity hearing in Florida, but not a trial.
If there is a duty to retreat, establishing inability to retreat can be difficult. Sometimes the self-defense inherent in the confrontation is obvious. But proving that you did not have the opportunity to retreat may be nearly impossible.
So without stand your ground, the innocent may be punished for not being able to meet a legal standard of proof.
Thanks …
I don’t know any case law, but it seems from what I gather here, that “duty to retreat” at some point became precedent. My only case law reference is the wild west showdowns, where they meet at high noon and face each other in a duel. In that case, the winner is guilty because he could have safely retreated.
As you state, “duty to retreat” puts burden of proof on the shooter, instead of prosecution having to prove reasonable fear for life. SYG just removes that burden from the shooter, though fatal defense still needs to be “reasonable”.
if my wild west showdown example is correct, it would make a good ad for SYG.
Show a series of famous movie clips where the bad guy loses (e.g. Silverado), and stamp “GUILTY” over it, and explain “Heroes that stood their Ground would be guilty if Holder got his way.
Holder would have good men required by law, to run from bullies”. (and he supplies the guns to the bad guys)
Another element to this concept of “duty to retreat” is the feminization of men.
“Hide the women and children!!…and the men!”
There was a great essay written not too long about how “duty to retreat” is a necessary element in marxism. I wish I had bookmarked it. It may have been in American Thinker.
“In many states, self-defense is an affirmative defense that must be established by a preponderance of the evidence.
Not “many states.” ONE state. Ohio.
–Andrew, @LawSelfDefense, #LOSD2
This is why I hope you stick around for a while yet, both on this blog and in the wider media & blogosphere. Just because the trial’s over doesn’t mean the Left is going to stop trying to press their factually incorrect narratives about the case and about self defense/SYG law in general, and it’s handy to have rebuttals like yours above, factual rebuttals from a real lawyer, to counter them with.
This is really about gun control. I am positive the Federal and State governments in cahoots with people like Sharpton, Jackson, etc are using this case to further the repeal of the second amendment. I think they want to keep stoking the animus until there are open conflicts involving hundreds of people and they can then bring in the National Guard and declare martial law. They can then suspend long held rights under the guise of our safety. Notice the meme that keeps popping up in speeches re: stand your ground laws. Thinking people know SYG had nothing to do with this case but it is considered to be the weak link in the gun rights chain. Remove that and the Second Amendment becomes more fragile. I haven’t read the text but I understand Holder’s speech yesterday was quite chilling in it’s verbage. That is a warning folks. I don’t want to be like Chicago or Australia or the UK. I don’t want to retreat from a place where I have a right to be because some thug is threatening me. That just emboldens them and the cycle will get worse. People everywhere, whether gun owner or not, need to understand what is really going on here. Gun ownership is a right AND a choice and we better start making our voices heard.
Damn good thing, that Holder and Barry were NOT around during the Boston Massacre, in Boston, Massachusetts. his nation would still have a REAL King, instead of the Faux Prince(s) we now have.
BTW, if the Crispus Attucks legend IS true (Many people think he was the first person shot dead by British)..obviously our nation had a true hero of color, NOT the phonies we now have!
http://iowntheworld.com/blog/wp-content/uploads/2013/07/Washington-Crossing-the-Delaware.jpg
Priceless! This be the second time, this week, that I gotta’ wash and dry this here laptop (as he drags his wet machine to the washer.
LMD’amn Fool Ass Off!
DAMN IT!
hisTHIS nation..The way some people frame it, she was afraid for her children, but isn’t it true that the husband had custody?
Also she had a restraining order against her. She claims she went to the house to retrieve her things when she thought the husband wasn’t home. Isn’t this violation enough to be considered criminal actibity.
How does she have access to a handgun if she’s under a restraining order?
Neighbor of mine was subject to such, and the cops came and took all his guns.
Lemme spell it out fer ya: Because she a girl, that’s why.
(If it weren’t for double standards, lefty-femmes would have no standards at all.)
If we’re going to have a national conversation about Florida’s stupid laws… the 10-20-life mandatory minimum law seems like a good place to start.
The idea that simply threatening someone with a gun is considered a more serious crime than actually carrying out a violent rape with a knife is horrible.
One of the readers above explained a bit about the background of how the 10-20-Life laws came into being. I’m not a fan of them either, or of mandatory sentencing in general, but as always when the pendulum swings too far to one side (in this case, ridiculously lenient sentencing by the judiciary which left the average law-abiding citizen frustrated and frightened), when it swung back it swung equally too far to the other side (in this case, ridiculously harsh and inflexible mandatory sentencing laws which took the option of slap-on-the-wrist sentences out of the judges’ hands entirely.)
Hmmm, Ok I am a liberal, and I believe in SYG laws, and I dont own a gun, and I now understand why SYG was not an issue in this case
I am still utterly confused as to how on earth “warning shots” warranted 20 years???
Some reports are that she aimed at them and I am guessing missed? Other reports are that she merely fired warning shots.
I honestly dont understand why she got 20 years – is it because it was “Proven” that she aimed at them but just missed? Thats like aiming with a car and everyone lives, (well sorta) in any event, can anyone help me understand how on earth she received 20 years?
I mean beyond the two words “Angela Corey”?
I havent followed this trail, and given how sensationalized the GZ trial was compared to actually viewing it maybe its just media mongering, but can anyone enlighten me as to why or how on earth this woman got 20 years?
Marc45 explained it here – https://legalinsurrection.com/2013/07/the-marissa-alexander-case-wasnt-about-stand-your-ground-either/comment-page-1/#comment-457441
Thank you for the link, Ok I do understand the history of sentencing better now, but I still cant imagine how someone can face 20 years when noone was actually injured?
I can imagine refusing the 3 year option, again because noone was actually injured
FIRST: “Warning shots” are hardly ever appropriate in self-defense. If you need to shoot an attacker to stop him, then shoot him. If not, don’t fire at all.
This military veteran is facing charges for firing a warning shot:
SECOND: Alexander went to her car and retrieved a firearm, which she then carried back into the house and fired. If she were actually in fear of her life she would have climbed in her car and driven away–but she didn’t.
THIRD: Many have commented that she had a restraining order against the man she allegedly fired at (as if having a restraining order was justification for shooting at him). But SHE traveled to the house where HE lived. Once she found he was there she should have simply left (and would have, if she actually feared for her life).
And a jury convicted this guy?
From newspaper accounts the charges against Jonathon Kinsella have not been resolved. He has not been convicted. Oregon code reads:
Sorry the defendant is Corey Thompson. Kinsella is the burglar. The charges are reckless endangerment and unlawful discharge of a firearm. It seems that Thompson should give Mr. Branca’s Oregon equivalent a call. Most likely Thompson has a very defensible case under Oregon law.
As I understand it, Castle Doctrine applies INSIDE the house. Not in the yard, not on the porch. A criminal attempting to break in is not (yet) inside the house. Any claim by defendant that he believed himself to be in immediate deadly peril is much harder to support if the attacker isn’t even inside the house. The “warning shot” itself implies that the shooter didn’t believe that he was (yet) in immediate deadly peril, since he had time to fool around with warning shots, rather than fatal shots which would actually stop a deadly assault on his person. The possibility of being in deadly peril a bit later isn’t good enough. Shooting an assailant to death has to be a last resort. There’s no provision for gradual escalation. Simply displaying a gun (without doing any shooting at all) is similarly problematic, even if it accomplishes the desired goal (ie, discouraging the deadly assault before it occurs).
Also, in most states you can’t shoot someone to protect property. “Protecting your house” is protecting property. Similarly, you can’t shoot “at” someone to protect property. Since defendant didn’t actually shoot “at” the criminal, he may have some basis for defense.
Something like that, anyway.
I believe an attached porch, especially if it’s covered, is still part of your home for these purposes. Back yard is right out, though.
There is enormous variety among the states vis a vis the scope of their Castle Doctrine. Some states, like Massachusetts, defines the Castle very narrowly, just inside the four walls of your house.
Other states expand the Castle Doctrine to include what the law refers to as “curtilage”, a loosely defined term the folds in things like a front and back porch, a driveway, perhaps a yard, perhaps outbuildings, detached garage–it varies quite a bit.
Then other states expand the Castle Doctrine to include temporary dwellings, like rented hotel rooms, motor homes, even camping tents.
Still others expand the concept to one’s place of work, and even an occupied motor vehicle.
Finally, at the far end of the spectrum, a majority of states have essentially expanded Castle Doctrine to its conceptual limits, to apply everywhere as in SYG.
If only there were a book . . . . http://www.lawofselfdefense.com
–Andrew, @LawSelfDefense, #LOSD2
Warning shots are a component of self defense. I am reminded of the case of a retired United States Marine firearms instructor.
Angry about not being admitted to a Party a group of youths used a garbage can to break a bay window in the defendants home. The youths were armed with baseball bats, and would not retreat from his property. Wishing to protect his home and the guests lawfully in his home, the retired Instructor went outside to confront the youths on his lawn with a rifle.
When he asked the young men to disperse, one replied that the defendant did not have the guts to use the weapon. He responded by discharging a carefully placed round between the youths in such a manner that it would embed in a tree. The youths dispersed and the police arrived.
Among other charges, he was charged with reckless endangerment. He asked for a bench trial. The judge, a Marine Corps Reserve Colonel, ruled that the discharge of a firearm by a US Marine Corps firearms instructor was presumptively not reckless. The prosecution had done nothing to dispel that presumption. In fact the Court found the firearm had been deployed in a professional manner. The Court further went on to state that had the defendant chosen to use lethal force, the circumstances would have justified it.
are you sure that you meet the criteria of being a “liberal”? Do you believe in a free market economy?
I was offended by the Marissa Alexander story and considered it a miscarriage of justice. Thanks to your providing the details, I no longer feel that way. I still think the sentence didn’t fit the crime, but had she had competent counsel, she should have taken the 3 year plea bargain instead of rolling the dice on a 20 year conviction.
Do you think this example is a one-time fluke mistake of the leftist media, or are you ready to grasp that the prudent person always presumes leftists are lying until one has personally inspected all the evidence for the leftist’s claims?
There are two stories about the gunshot – 1. She aimed at her ex-husband and the children and missed. 2. She aimed at the ceiling.
We have learned not to believe anything Corey writes on an affidavit, or says to the press.
OK can someone explain the 10-20-life law of Florida? Which I believe played a big role in this case. To me it appalling that someone simply discharging a firearm get 20 years. If she were actually aiming at him wouldn’t some form of assault or attempted murder charge be brought instead of a discharging a firearm charge.
Also I am curious about what responsibility a person who “defending others have” to avoid conflict? The claim is that Ms. Alexander was defending her children ( with very heavy emphasis on the word claim ). One example in Coreys jurisdiction is Ralph Thompson who fired a weapon into the ground to scare off some teens trying to gain entry to the house of neighbor while the mother was preventing it. ( One of the teens was the son of the owner, recently kicked out. )
Good grief, man. Go back and read Andrew’s article. The answers to all your questions are in it.
I don’t see any mention of 10-20-life.
I also don’t see any discussion about whet responsibilities a person has in defense of others situations,
Marc45 explained the 10-20-life thing in a comment.
She wasn’t defending her children. The boys were her husband’s children, and she fired at them. According to Andrew’s story, which I assume is based on the actual trial testimony, the bullet went through the kitchen wall and lodged in the ceiling in the living room.
The moral of the story is if you’re going to get a gun and point it at someone, shoot them. But first make sure you have a legal reason for doing so, or you will end up in prison.
Yes, as I understand it, firing a weapon at or near someone in Florida is considered to be using “deadly force” (despite Joe Biden’s advice that it’s a good idea for ladies to blithely fire “warning shots” at scary strangers through doors and off balconies and such). And use of deadly force with a gun needs to meet certain parameters (to stop or prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to yourself or another person).
If the situation you’re in doesn’t meet those parameters, don’t pull that trigger. Actually telling the police on the scene that you were “only firing a warning shot” seems to me like you’re basically admitting right off the bat that the situation didn’t meet the parameters for employing deadly force…
Alexander was not defending the children. The children were living with her husband anyway.
She discharged the firearm without regard for the presence of the children.
If I were a member of this jury and were I aware of the sentence that would be applied, I would have intentionally hung the jury if I couldn’t convince them to acquit. Twenty years is terribly excessive for what she’s accused of doing. I don’t disagree with the jury that she is guilty. I don’t really know and I assume they found correctly.
Jurors are not made aware of the sentencing criteria. Some may be aware of them independently, but they are not given that information during the trial.
I am aware of the arguments for why they shouldn’t know the sentencing criteria, and there are a few good points therein, but I think the arguments for why they *should* be informed of the sentencing criteria outweigh the ones for why they shouldn’t.
Wouldn’t it be interesting if prominent counsel came forward on Alexander’s behalf, and with Sharpton et al. at their side, publicly announced a motion for new trial and demanded that Angela Corey and her successor join the motion? I doubt it will happen, and Alexander will likely find that she was just a pawn for the Racial Grievance Community.
Isn’t it amazing that so many African Americans/Blacks, (or whatever I am supposed to call them this week to keep myself out of trouble) are clueless as to how they are incessantly used by the race industry to further line the pockets of hustlers such as Sharpton and Jackson and, as Robert Zimmerman so eloquently put it in a recent interview, keep themselves from becoming “obsolete”?
It’s an impossible issue to discuss rationally. You’d be branded a racist and, if you ever had to defend yourself with a gun, it would be brought up in your trial as evidence of a depraved mind.
Since I upthumbed your comment I’m guilty of a depraved mind.
However when I visit another forum(liberal orgy)they are the first one’s to inject race/societal economic inequalities in explaining away any statistic.
Yet they(liberals) seem to believe they live on higher moral ground – immune from the charge of racism, while indiscriminately lobbying it in any oppositions direction.
Ironically, this case shows more consistency than inconsistency. Mrs Alexander appears to be guilty much for the same reasons Mr Zimmerman is not. Let’s pretend for a minute that Mr Zimmerman became the aggressor by getting out of his car. It becomes irrelevant because Mr Martin runs away and Mr Zimmerman begins to return to his vehicle. Then when Mr Martin returns and confronts him, Mr Martin becomes the aggressor. Likewise, even if Mr Alexander had initiated a fight he ceases to be the aggressor when Mrs Alexander retreats to the garage to retreive the gun. The cases are similar, except Mrs. Alexander reprresents Trayvon Martin on trial for aggravated assault if the police had arrived before Mr Zimmerman had fired his weapon.
Off direct topic, but related: an article in National Review on Corey.
http://nationalreview.com/article/353633/angela-coreys-checkered-past-ian-tuttle/page/0/1?splash
I took a lot of firearms and personal protection training over my lifetime, and one thing was constant: never, EVER, fire a warning shot. If the situation doesn’t warrant shooting somebody then it doesn’t warrant a warning shot. Discharging a firearm for any reason other than defending against an imminent threat will only get you into trouble.
After reading the details of the Alexander case, I’m not too surprised the jury took only 12 minutes of deliberation to find her guilty.
Sheriff Joe Biden says a couple shotgun blasts through the door are appropriate. But I’m not clear if he meant to kill the intruder (or mailman), or just to send a warning.
You’re only supposed to have a double-barrel with blanks loaded in it.
That’ll be the libs “compromise” you know cause Di Maio did say on stand that a blank can be fatal at contact range – it’s right in line with your duty to retreat until someone is beating the crap out you
That’s why I prefer the Remington 870. The sound of you pumping a shell into the firing chamber is hard to miss and completely legal.
Yes, you’re taught not to fire a warning shot, but it’s engraved in our national psyche as the kind of thing a reasonable person does to diffuse an escalating situation. From the navel admonition to ‘fire one across their bow,’ to numerous Cowboy’s plugging a bullet between the shoes of an advancing rustler, our ‘heroes’ have implanted that idea in our psyches. Unfortunately the rigidity of the law trumps heroic inclination, and the well-intentioned vet is paying the price
You receive admonitions from your belly button?
Warnig shots are a bad idea. In Somalia, one of the bad guys tried to indimidate a relief worker by discharging at his feet. Round ricocheted off the ground and killed relief worker.
Plus, Murphy loves warning shots. Alexander is lucky her “warning shot” ended up in the wall and not her neighbor’s head.
I just caught the very end of an interview about this case on CNN between Wolf Blitzer, Jesse Jackson, and unfortunately, David Webb.
Both Webb and Jackson want this case appealed, Jackson wants all kind of public pressure brought to bear…Webb also wants it reviewed in light of the sentence. He seemed completely unaware that it was a mandatory sentence…
Very disappointed in Webb for not knowing the facts of the case.
Jesse Jackson is not a lawyer but then again, neither am I, and I have never practised as such. The difference though, is that I can interpret the situation correctly.
From the very first time I heard of the case of Marissa Alexander, I have steadfastly stated, it was not SYG and such a defense was doomed to failure.
The reasons for my own conclusions are set out by Andrew Branca but here goes anyway.
1. SYG (contrary to what Traybots think) is not about bashing someone up, or anything like that, and it is not about discharging a weapon. SYG concerns ones actions and a duty to retreat.
2. The facts of the Marissa Alexander case simply do not meet the criteria of SYG. This is because
– she left the premises where there was a confrontation.
– she went to her car and fetched a gun.
– she then recklessly discharged that gun in the direction of the children who were present.
Since Marissa Alexander, by going to her car, could have retreated, then she does not meet the criteria.
However, Alexander went one step further, and she returned with gun in hand and fired it, and that is the action that showed that she was thinking about premeditated murder.
This is why I think that Jesse Jackson has shown himself to be once again a total idiot.
I add here there is another case that is used for comparison, and it is that of a black man charged with the murder of a white man. The facts of that case also do not lend themselves to SYG because the black man:
1. initiated the confrontation that led to the neighbour (the white man) intervening to stop him slanging at the neighbourhood children.
2. the black man went into his garage and got a gun prior to him having a one on one confronation with the white man.
3. the gun discharged during the fight, but I would add that the gun was not needed in the first place, so I think that there was some pre-meditation involved.
The difference in facts in these cases and that of the Zimmerman case boils down to the fact that even though George had a gun, he did not use it initially and he did not brandish it as some have claimed. It remained in his holster until that last moment when he had to use it or be killed.
In the Alexander case there is no evidence that she was under threat of being killed, hence her attempt to use SYG as a defense is invalidated. Ditto for the other case. Ditto for those who claim that Trayvon Martin was standing his ground – wrong. Trayvon Martin had the ability to retreat and reach the safety of Brandy Green’s condo. Instead he chose to start a confrontation, hence the Traybot arguments fail in each of the scenarios that they have raised.
It is with trepidation that I nitpick someone who wrote a book on self defense, but…
Several times the phrase “safe avenue of retreat” has been invoked in this article. Does this mean something different in law than it means in ordinary language?
It seems to me that if one has a “safe avenue of retreat” that is actually, you know, *safe*, then one is not by definition in a life-threatening situation, and justifiable self defense provisions do not kick in. One is already in a place of, or situation of, safety.
Is it not the case that when a situation rises to one of imminent serious bodily harm, it’s because there is *not* any entirely safe option available to opt out with no risk (retreat or otherwise)?
I point this out because I think that using the phrase “safe retreat” in the context of self defense is rhetorically misleading and gives the wrong impression to those who hear it, not to mention that it hands a “talking point” to those who wish to distort the subject.
We need to be careful to use phrasing which clarifies that even when it’s possible, “retreat” in all but the most unusual self-defense situations isn’t “safe”, it’s another risky choice that could well get you killed or more seriously injured compared to using potentially deadly force yourself, or could put others at greater risk.
*This* is why SYG laws were enacted. To prevent prosecutors from Monday-morning-quarterbacking what “play” maybe-kinda-coulda worked out better, when (just as in sports) *any* play might have pulled out a win or might have ended in eating dirt. SYG laws weren’t enacted (as critics have charged) to entitle people to blow away an aggressor rather than simply disengaging without harm (to anyone), and yet the “no requirement to safe retreat” style of phrasing gives the impression of “conceding” this.
I’m telling you what the legal standard is–a reasonably safe avenue of retreat. If you don’t like it, take it up with the courts.
If you’re in a general duty to retreat state, and wish to use deadly force for personal protection, and fail to make use of a safe avenue of retreat, your use of force cannot be justified as self defense.
On the other hand, if the avenue of retreat exists but is not safe–say, having to dash across a busy freeway–then the duty does not apply.
Save versus unsafe.
–Andrew, @LawSelfDefense, #LOSD2
I have only one caveat to this account: the facts as presented here certainly lead to the conclusion that her conviction was correct, and she had no grounds for a “stand your ground” defense. However, the source of those facts, as I understand it, is none other than Angela Khouri, and now that we know what a perjurer she is, how much trust should we put in them? Maybe the facts were slightly different, and Ms Alexander was railroaded, just as Khouri tried to do to Mr Zimmerman. How can we be sure she was not?
Milhouse your points are good ones. However, the sticking point happens to be that Marissa Alexander refused to plea bargain which would have brought a 3 year sentence.
Was she railroaded? We would have to see the trial records to see if that is valid.
To me it sounds like her defense lawyer decided to go for the SYG defense without understanding the meaning of SYG.
If she was innocent why would she accept three years? Once we know that Khouri is not above lying to the judge, we can’t trust any case she’s made in any trial.
the plea bargain was for discharge of a firearm. If the circumstances are exactly as I have read about them (as raised by many others), then hers was not an SYG case. Her lawyer was wrong in not advising her to take the plea bargain and to explain fully the consequences of going to jail.
If she was truly innocent, then her lawyer did a really lousy job because the jury was not convinced about her plea of SYG.
I agree with regard to what you are saying about Corey and BDLR. If any case needs exposure it happens to be the Cristian Fernandez case because he was the child they wanted to try for murder as an adult because he pushed his half brother into a bookcase. They did say some really nasty things about this boy, and I am betting that those things were not true!!
[…] invoked by Zimmerman's defense, doesn't resemble the Zimmerman case. A couple of days ago, Andrew Branca considered the differences. The woman and her husband were estranged and had taken out restraining orders against one another. […]
1. If SYG is irrelevant in the martin-zimmerman case, why did the judge include it in her instructions, and why did the jurors consider it in their deliberations?
2. Did Ms Alexander claim she was in fear of her life? Was this fear reasonable? If these elements are present, self-defense should acquit. You dont even address this.
3. You claim SYG cant protect Alexander because she was engaged in illegal activity. But the supposed illegal activity is the very shooting in question! So you’ve begged the question; it'[s a circular argument. IE: What’s in dispute is: was the shooting illegal? You cannot then say “yes, because it was an illegal shooting.”
4. Since the judge in the martin-zimmerman did instruct the jury to consider SYG, the question of illegal acts on zimmerman’s part arises. Arguably, he was stalking Mr Martin.
Florida law also allows consideration of the initiator of the aggression. Yet the judge explicitly told the jury NOT to consider that, but only to consider whether zimmerman felt fear at the moment he decided to shoot mr martin. In other words, she ruled that even if zimmerman instigated the whole thing, that doesn’t matter!
Where was trayvon’s right to SYG?
I “blocked” you on twitter because of your refusal to engage in and accept reasoned legal explanation. I do not intend to engage with you here. I’ve approved the publication of your comment here in the event that others might have the time and inclination to do engage with you (and good luck with that).
Should you _really_ wish access to my time, you may to so, but not for free. I formally consult on self-defense matters at an hour rate, with an hourly minimum.
Alternatively, if your worldly means amount to some figure in excess of $39.95, which seems doubtful, you can simply purchase a copy of “The Law of Self Defense.” (It’s not, as some have rumored, in cursive, so you should be OK.)
–Andrew, @LawSelfDefense, #LOSD2
Ms alexander, of course, claim to have feared for her life and her children’s. Who had legal custody of them? Was their father threatening the mother verbally? We know he had abused her in the past, so any such threat could be both implied and very believable.
Again, you dont even address this.
[…] Read the facts about the Alexander case first. The two cases are pretty clearly different and the charges against her were not unfair or over-zealous. The following link is from a site that was very pro-Zimmerman: Marissa Alexander | stand your ground […]
[…] You may, like any normal thinking person, be wondering how the heck the conversation turned to Stand-Your-Ground in the first place. After all, the Zimmerman case had nothing whatever to do with Stand-Your-Ground (as discussed in detail here: The Marissa Alexander Case Wasn’t About “Stand-Your-Ground” Either). […]
I thought I could come here for some expert, unbiased perspective on this case. I see I was wrong.