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Efforts to “change” Stand-Your-Ground Laws really aim to eliminate them

Efforts to “change” Stand-Your-Ground Laws really aim to eliminate them

It is said that the first casualty of war is the truth, and we are being provided with a ringside seat to just such political theater with today’s newest front on the war on law-abiding gun owners.

That front is, of course, being waged on so-called Stand Your Ground laws.

This past week Florida Senate Democrat Leader Chris Smith stated that the state’s stand your ground law “give[s] deadly aggressors a free pass from prosecution,” as he advocates for “long overdue and reasonable changes” to the law, as reported in the Tampa Bay Times.

Mr. Smith has put forward “SB 122: Self-Defense” which makes several changes to Florida’s existing self-defense laws. Curiously, one facet of Florida self-defense law that it does not change is Stand-Your-Ground. The statutory language that “A person does not have a duty to retreat if the person is in a place where he or she has a right to be,” remains intact, despite Smith’ claims that this is the issue he intends to address.

Trayvon Martin

(Trayvon Martin)

So what exactly does Smith’s statutory language change? Amongst a flurry of changes, many of which are inconsequential, two appear particularly notable.

The first feature is that it is specifically crafted to address the factual scenario that played out in the self-defense killing of Trayvon Martin by George Zimmerman.

In every state, including Florida, an initial aggressor is not allowed to justify his initial use of force as self-defense. This is consistent with the second fundamental principle of the law of self-defense, “Innocence” (Chapter 2 in The Law of Self Defense, 2nd Edition).

It is also true, however, that an initial aggressor can “regain their innocence” for purposes of self-defense. The classic scenario is when the initial aggressor’s use of force is limited to non-deadly force—let’s call this person “George” (while noting that there was never any evidence that anyone but Trayvon was ever the aggressor in the Zimmerman case). George’s victim—let’s call him Trayvon–is lawfully permitted to respond only with a similar degree of non-deadly force.

If Trayvon instead responds with deadly force, he has unlawfully escalated the confrontation—indeed, Trayvon has in effect created a second, separate deadly force confrontation. In this case, Trayvon has become the aggressor in the second confrontation, and George is now the victim. George now has all the self-defense rights of any innocent person to protect himself from this deadly-force attack, including responding with deadly force in return. (Note, however, that George could still be held legally liable for his initial use of non-deadly force, which cannot be justified as self-defense if he was the aggressor.)

This is captured in Florida law in “776.041 Use of force by aggressor” which provides in relevant part that self-defense:

“is not available to a person who . . . initially provokes the use of force against himself or herself, unless such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant . . . “

It is important to note that while this aggressor statute does allow for a non-deadly aggressor to claim self-defense if he is faced with a deadly-force response, he remains stripped of any “Stand Your Ground” rights. In order to recover his innocence under this statute he is required to have “exhausted every reasonable means to escape such danger.”

This requirement gives the lie to the many claims by the misinformed—and those who wish to misinform—that Stand-Your-Ground means George can simply shoot someone first and ask questions later. Stand-Your-Ground never applies to the aggressor in a confrontation. It can only ever apply to the person who is a victim of an unwarranted attack. In order to Stand-Your-Ground and use deadly force in self-defense you must be the victim of an unwarranted deadly force attack—period.

Mr. Smith wishes to delete Florida’s statutory language enabling the recovery of innocence of a non-deadly aggressor faced with a deadly-force response, and replace it with language to the effect that self-defense is not available to a person who:

(c) Leaves a place of safety to place himself or herself in proximity to a situation likely to result in a use of force.

Self-defense would also be denied any person who:

(c) Leaves a place of safety to place himself or herself in proximity to a situation likely to result in a use of force; or

(d) Pursues an alleged trespasser or assailant after the alleged trespasser or assailant has withdrawn or when the incident that gave rise to a previous confrontation has ended.

Let’s think about the unavoidable consequences of such statutory language. It means that if lawfully armed “Tom” sees “Walter” raping a woman in the town square, and Tom comes to the woman’s rescue in such a manner that he “leaves a place of safety to place himself . . . in proximity to a situation likely to result in a use of force,” and Walter turns and begins shooting at Tom with a pistol, if Tom uses his own sidearm in self-defense and kills Walter, Tom does so with no self-defense justification. Under Mr. Smith’s statutory language, in this scenario Tom is a murderer.

It also means that if Walter has just completed his rape and is departing the scene of the crime, and Tom pursues him while guiding police officers to the scene to make an arrest, and Walter seeing this pursuit turns and attacks Tom with a deadly weapon, Tom has no right to use similarly lethal force in self-defense. Mr. Smith wishes to literally force Tom to bring his bare hands to a gun fight, or have him convicted of murder.

Perhaps this is the kind of self-defense framework the citizens of Florida will welcome with open arms, but I rather doubt it.

Florida State Senator Chris Smith

Florida State Senator Chris Smith

The second major change created by Mr. Smith involves the civil immunity language of existing Florida law. Actually, there are two such changes he proposes.

First, under Florida statute 776.032, “Immunity from criminal prosecution and civil action for justifiable use of force”, if the aggressor in a self-defense encounter seeks to sue the person who defended themselves against the unlawful attack, and the court determines that the defender use of force was lawful self-defense and therefore immune from civil liability, the court must award lawyer costs and other fees to the person who acted in self-defense.

In other words, if you shoot someone in lawful self-defense and they or their family later sue you, and you qualify for immunity, the court must compel your attacker to pay for all your legal expenses. The court has no discretion in this regard.

Mr. Smith seeks to make the recovery of legal costs by the lawful defender optional, and within the court’s discretion. This means that if the civil case is brought before a plaintiff-friendly judge, the lawful defender can expect little hope of actually recovering their legal expenses even if they successfully defend themselves as effectively in civil court as they did in the real world.

Second, Mr. Smith provides that the court may apply comparative fault to award damages. Today, if the lawful defender wins in civil court—meaning a preponderance of the evidence, or 51%, supports the lawful defender–the unsuccessful attacker who sued him for $10 million gets nothing (and has to pay the defender’s legal costs).

Under Smith’s proposed language, if the court decides that the lawful defender was 51% in the right, the attacker still gets to recover 49% of the amount of damages, or $4.9 million. Even if the lawful defender is 90% in the right, he must still pay the attacker $1 million if there are $10 million in total damages. So, having survived a lethal attack, and having survived criminal prosecution, the lawful defender can be all but certain to be destroyed in civil court.

George Zimmerman, minutes after being attacked by Trayvon Martin

George Zimmerman, minutes after being attacked by Trayvon Martin

It’s hard to see such a proposed change as anything more than a sop to plaintiffs’ lawyers seeking to ride a felony attacker’s violent act to the bank.

The mainstream media is, of course, reporting such legislative proposals as “simple” and “common sense” changes to Florida’s Stand-Your-Ground law. Hopefully someone will inform Florida’s voters on the negative consequences of Mr. Smith’s legislative proposals.

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.

Andrew conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.

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

The Florida Senate is 26-14 Republican. There is little chance of SB 122 becoming law.

The current law was carefully crafted and benefits minorities and the poor who engage in lawful self defense. Police are reluctant to even charge in clear cut self defense cases. Engaging an attorney may not be needed if there is a compelling narrative of innocence.

The attack on Civil Immunity is interesting. I could be wrong, but I smell the work of Crump and Co here. Andrew, do you know how many states have civil immunity provisions. Doesn’t Illinois have one that Obama supported?

There isn’t a snowball’s chance in Hell that this passes the Florida legislature OR gets signed by Gov. Scott. It is a ONE-WAY ticket to defeat in the next election to even suggest voting for such a piece of legislation anywhere outside of Broward, Palm-Beach, Orlando, Dade, Tampa, and maybe Tallahassee (the Liberal-Marxist strongholds). Anywhere else and the legislator suggesting it will be run out of town on a rail.

Actually, the DEFENSE bar probably won’t let it even really see the light of day. They want to be able to sock it to any plaintiff stupid enough to bring a frivolous claim, because the Defense Bar (those attorneys who practice criminal and civil defense) wants to guarantee that they’re going to get paid for taking on complex and long-lasting cases (which civil gun cases ALWAYS are).

I concur with Sequester: I sense the hand of Crump & Co. quietly guiding a “sympathetic Black Legislator” for their own nefarious ends. Should the law be changed, Crump can then go after Zimmerman, as the res judicata of the not guilty verdict in the criminal prosecution via lawful self-defense would no longer be a “definite” payment on the part of the Martin’s suing him, but an “optional” one subject to the discretion of the Court.

Blackmail or in the case that Smith puts forth, Whitemail..

I suggest using this Hoodie pic in the future. Suspect the Hoodie.

Charles Curran | September 1, 2013 at 3:44 pm

Mr. Branca. How is the case in New Orleans progressing? People with an agenda simply ignore the law. Barry O comes to mind.

    Nothing substantive has happened in the last week or so in New Orleans, at least that’s come to my attention. Tips on news I might have missed are always appreciated.

    –Andrew, @LawSelfDefense

      never try to migrate a messed up SBS2011 server to a SV2008R2 setup. you may take the domain down …..like I did lol
      thats my tip, bet it does you no good though 🙂

      I will keep an eye out for stuff on this one and post in tip line if I see anything unless there is better spot you know of.

      amatuerwrangler in reply to Andrew Branca. | September 3, 2013 at 6:10 pm

      A Google search for Landry yeilds, among others, a news article posted 28Aug that a hearing for Landry was postponed and rescheduled for 20Sep, No indication of the nature of said hearing.

      This appears at least to confirm that some charges have actually been filed in court, that Landry’s case has moved from the police station to the courthouse.

      I still find it unsettling that he was placed on unpaid leave from his job even though no charges had yet been filed and he was free on bail. Maybe in LA it is normal to punish the accused.

Interesting example. You think it would help if someone asked Chris Smith why he is pro-rape, like the Left tries to pull on us?

Phillep Harding | September 1, 2013 at 3:59 pm

Ya’ll warn not to be too sure of what a jury is going to come back with, but remember: Jurors are vetted for raving lunatics, but legislators are not. Don’t bet heavily against anything being passed or not.

Also, this could be attached as an amendment to some other bill and get passed while everyone is arguing about something else or distracted by the latest “Honey Boo Boo on Parkshore” episode.

The “big test” actually comes in 2014. Since Rick Scoot’s probably going to be seeking a second term as Floriduh’s governor. What wins? Red? Or, Blue?

The largest percentage of people did NOT watch the trial on TV.

NC Mountain Girl | September 1, 2013 at 4:04 pm

They won’t push back in public against their political leaders but most blacks I met are both terrified of young black thugs and don’t think much of gun control laws. I noticed when I lived in Chicago that the most vocal advocates of gun control tend to be people who live in gated communities or in high rise buildings with 24 hour doormen. One of my fondest memories was being present at a policy forum conducted by one of the goo-goo associations for an exchange between just such a liberal and an inner city mother who noted that the liberal had never had to put her children to sleep inside an old fashioned iron bath tub because of the gang war raging every night in the hallway of her apartment building.

    There’s a reason the “Limousine Liberal” crowd is for “gun control” (read “disarming the people”). They think that if they “eliminate” guns, that there will be no more guns, and it will make them safer.

    The Liberal who was for gun control probably thought that she should respond by saying “well, if we eliminate guns, the criminals won’t be able to get them any more and you’ll be able to sleep peacefully without worrying about if your children will get shot by a stray bullet.”

    Those idiots seem to think that criminals are going to obey the law, or that by eliminating legal gun ownership that it will somehow make it harder for criminals to get their hands on guns.

    I would suggest they look at the drug culture in any major city to see exactly how far making something “illegal” goes in terms of making it hard to get. With the right connections, you can get ANYTHING you want, and I literally mean ANYTHING, in any US city with a population exceeding 1 million people, usually cheaper in larger cities because there’s more competition for the spending dollar on the black market.

With all due respect, Senator Chris Smith, “that’s retarded, sir.”

    Yes, and if you read any of the websites or FB pages of the local Florida papers, you would have seen how overwhelming the local Florida support was for the pizza guy.

    There was much hilarity over the national news TV station which reported it as “Florida Pizza Delivery Man Takes Law Into His Own Hands” — as in, duh, whose hands would you WANT the means for your own self-defense to be in, when you’re being held up by a knife-wielding thug? Mayor Bloomberg’s? LOL.

    Another reason why I think this bill is dead in the water.

And really, what a different a few years makes?

Just eight years ago, Florida Senators unanimously passed our SYG laws, Republicans and Democrats alike. Not a single Democrat Senator voted against them. And then the House passed them as well with just token Democrat opposition, 92-20.

Does anyone really think that the general mindset in Florida has changed so greatly in the past 8 years that our Congresscritters will risk passing this joke of a bill, especially with an election coming up next year?

Liberals never met a law conservatives like that they didn’t immediately want to change or nullify.

It’s Liberal(knee)jerk reaction.

One last comment, then I’ll go finish de-veining my shrimp 🙂

For readers who live in Florida, phone or write your State legislators about this. If you don’t know what House and Senate district you’re in or who represents you, your can stick your mailing address or zip code into this website to see details for your State and U.S. Senators and Representatives as well as maps for your area.

Why does Chris Smith want women to be raped, and innocents to be murdered? Because that’s what Democrats do. That’s what Democrats are. They are the Party of murder, Rape, and Crime. They want to make it safe for fellow Democrats.

A week before Trayvon bopped George Zimmerman in the nose, he bragged in a cell phone conversation that he had just done this “maneuver” on someone else.

No one ever came forward to claim Trayvon ever bopped him on the nose.

I guess no one ever thought of offering anyone an interview on TV? First man to ever get bopped in the nose, it seems, is George Zimmerman.

No wonder the “state of our news” is such a calamity.

Let’s get real.
The only reason for the displeasure with “Stand Your Ground” is the part that has shielded George Zimmerman from civil action.

    Bruce Hayden in reply to Neo. | September 2, 2013 at 1:38 pm

    Not sure how much that is true. Zimmerman never had an immunity hearing, and std of proof is much lower on the other side. So, not clear what would happen if Crump/Martins brought suit against GZ. Could GZ request an immunity hearing at that point? Who would defend? The state would likely have no incentive, already having lost its criminal case. Would the Martins even have standing there?

    Then, if there were not an immunity hearing, or if GZ were to have lost it, then what? Only real chance for the Martins would seem to be pure comparative negligence, as described by AB above. Minute that Martins (Treyvon and family) being more responsible than GZ eliminates liability for GZ, Martins likely lose. They just don’t have the facts on their side. Worse maybe for them – there is a possibility that some of TM’s social media postings might come into evidence.

    The reason that I included the parents is that I might consider a counterclaim negligent parenting on their part, if they brought suit. TM doesn’t seem to have been properly socialized, as evidenced by his school suspensions, his social media postings, and his most likely having physically assaulted GZ, putting him in mortal danger. This failure to properly socialize TM was clearly not GZ’s fault. It was primarily the parents’ responsibility, and arguably their duty to society was breached as a result of their failure to carry out this responsibility. That said, plaintiffs typical get choice of venue, and I would expect any suit against GZ to be filed in MIami-Dade, which is likely to be more sympathetic to the Martins (to see this in reverse, look to the OJ trials – he won the criminal case with a more inner city jury, but lost the civil case with a much more affluent, mostly white, jury pool).

CCW FTW!

If passed, the racial disparity impact upon the Black community would be greater than in White ones. Geesh, it’s the Black folks who are mostly living around the Poor Little Trayvons.

Plus, I guess there would have to be a Law Enforcement exception to Chris’s Law.

Squeeky Fromm
Girl Reporter

I find that any proposed change in the law a politician calls “common sense” is anything but that.

As I recall, Obama called ObamaCare “common sense changes”.

True common sense is self-evident and does not require a hard sell.

And they say the NRA is the crime lobby?

Speaking of “stand your ground”?

How often do we hear Obama Chicago-type supporters talk about how they have to protect “their turf” (with violence)–all the time!

But while thugs are allowed to “protect their turf”, you cannot protect yours from the thugs.

That makes a lot of “common sense”–if your goal is to aid the thugs.

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