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Stand Your Ground law is not a “license to kill”

Stand Your Ground law is not a “license to kill”

Law Professor pundits confuse general principles of self-defense law with Stand Your Ground, and contribute to the confusion.

The failure of the jury in the Michael Dunn case to convict Dunn of First Degree Murder or any of its lesser included offenses in the killing of Jordan Davis has led to a predictable outpouring of claims that that the case reflects societal racism, if not racism in the judicial system.  Dunn was convicted only of attempted murder and unlawfully firing a missile into an occupied vehicle — none of which relate to his killing of Davis.

As with the acquittal of George Zimmerman in the killing of Trayvon Martin, there was a rush to blame Florida’s Stand Your Ground (SYG) law.

Unfortunately, many of the people writing about SYG are doing so in apparent ignorance of what SYG is and what it is not.  By conflating “SYG” with other completely distinct self-defense legal concepts they only contribute to confusion over these self-defense law issues and complicate good faith debate of them.

More specifically, SYG as a legal concept functions ONLY to relieve a defender of a legal duty to retreat before he can use deadly force in self-defense.  It has nothing whatever to do with such other distinct self-defense law concepts as reasonable fear of harm, presumptions of reasonable fear, which party bears the burden of persuasion, or self-defense immunity.

We do not know why the Dunn jury deadlocked, on what issue or by what vote count.

We do know that precious little trial time was spent on the issue of whether Dunn should have or could have driven away once he heard loud music that bothered him.  Almost no time was spent on whether Dunn could have driven away once he believed that Davis was threatening him with a shotgun.

That is significant, because SYG only addresses a duty to retreat once the defender would otherwise be justified in the use of deadly force.  In other words, assuming Dunn was in such imminent threat of death or seriously bodily harm that use of deadly force was legally justified, did he need to look for a way to retreat?  Florida law, as the law in most states, says No, a person who otherwise is justified in using deadly force does not need to retreat.

Little emphasis was placed on the issue of post-threat retreat during the trial, particularly once the shotgun was brought into play.  While we cannot completely rule out that SYG played some role in the non-verdict until we hear from the jurors, SYG as a law has nothing to do with the issues that are front and center in the press, namely whether Dunn had a reasonable fear of imminent death or great bodily harm justifying use of deadly force.

That has not stopped the punditry from claiming SYG was the central focus of the case and the reason for a non-verdict.  This suggests either that they simply do not understand the facts of the case vis-à-vis the issue of retreat, or that they are conflating various other distinct self-defense law concepts with that of SYG.

Such conflation of SYG with other distinct self-defense law concepts is something that we have, sadly, come to expect as routine from journalists.  It is deeply disappointing when such a lack of intellectual rigor is displayed by those whose profession it is to teach the law.

University of Colorado-Boulder law professor Paul Campos has an article at Salon.com that’s unfortunately all too typical of this conflation phenomenon, Michael Dunn’s sick license to kill: The hot-blooded murder of Jordan Davis and Florida’s perverted justice.

Here is the key portion of Campos’ legal analysis from the Salon.com article, which also constitutes the entirety of Campos’ cross-post at Lawyers, Guns & Money blog,  Fear of a black planet:

“Unlike the George Zimmerman trial, the Dunn case featured a straightforward application of Florida’s stand your ground law. That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.

If you think that sounds crazy, you haven’t heard the half of it. Because the stand your ground law creates an affirmative defense for criminal defendants, the prosecution had to prove beyond a reasonable doubt that Dunn’s claim that he had a reasonable fear he was about to suffer great bodily harm was false. Such laws, in effect, put the victim rather than the killer on trial, which is exactly what happened in this case.”

As is the case with much of the punditry’s discussion of SYG, it is difficult to find a single sentence in those two paragraphs that bears the slightest resemblance to law or reality.

Let’s take them one at a time, in the order presented:

“Unlike the George Zimmerman trial, the Dunn case featured a straightforward application of Florida’s stand your ground law.”

As already explained, SYG applies only where the defendant had available a safe avenue of retreat and otherwise was justified in using deadly force. Whether Dunn could have left the scene prior to the supposed shotgun being pointed was an issue, but it had nothing to do with SYG, which comes into play only once a threat of imminent death or great bodily harm is present.

Here, Dunn claimed that he was only three feet away from Jordan Davis who allegedly was armed with a shotgun when Dunn decided it was necessary to use deadly force. The jury was then obliged to either disbelieve or believe that this use of deadly force was lawful self-defense

If the jury didn’t believe Dunn’s use of force was self-defense, SYG doesn’t apply.  At all.  SYG only addresses the duty to retreat once the use of deadly force otherwise is justified.  If there is no self-defense, there can be no SYG.

Only if the jury believes that Dunn’s use of force was otherwise justified does SYG arise, and then only if that use of force could have been avoided by Dunn taking advantage of a safe avenue of retreat.

The ability to safely retreat was not an issue in the Dunn trial, which I watched almost in its entirety and blogged about daily.  And for good reason.  Is there anyone who believes it is possible to safely flee from a shotgun-armed attacker standing a yard away? Shotgun pellets travel at ~1,200 feet per second, and in backing up Dunn would first have had to bring  himself closer to that shotgun, which was behind him.  He’d merely have been shot as he passed by Davis. Given these facts there was no safe avenue of retreat in this scenario, which is why it was not a major issue in the case.  (In any case, no duty to retreat would have required Dunn to leave behind his fiancé, Rhonda Rouer, who did not return to his car until after the act of purported self-defense has occurred.)

Even non-SYG states do not require you to retreat if doing so will increase your danger–retreat is only required if a safe avenue of retreat exists.  Absent a safe avenue of retreat, there is no duty to retreat. Absent a duty to retreat there is no role for SYG to relieve you of that duty.  Under the facts of this case, SYG is irrelevant.

This was not a SYG case, whether or not one believes that Dunn acted in lawful self-defense.

Next sentence:

“That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.”

As already discussed, this case has nothing to do with the legal concept of SYG. Nor does Florida’s self-defense law–neither its SYG nor any other provision–have any application of “reasonableness” that differs materially from any other state’s self-defense law.

If Dunn’s perception of fear was merely subjectively reasonable, but not objectively reasonable, then his conduct was not self-defense as a matter of law, and both SD and SYG are inapplicable. If Dunn’s perception of imminent death WAS both subjectively and objectively reasonable, then his conduct was lawful self-defense REGARDLESS of any SYG consideration. It would be self-defense under those circumstances even in a non-SYG state. SYG is again irrelevant.  This would be the case in any state, not just Florida.

Next sentence:

If you think that sounds crazy, you haven’t heard the half of it.

Whatever, filler, no intellectual value there. Next sentence:

Because the stand your ground law creates an affirmative defense for criminal defendants, the prosecution had to prove beyond a reasonable doubt that Dunn’s claim that he had a reasonable fear he was about to suffer great bodily harm was false.

Stand Your Ground has nothing to do with who bears the burdens of production or persuasion in a self-defense case. SYG deals only with relieving the defendant of a legal duty to retreat, if safely possible, before using force in self-defense.  In any case, Florida’s burden of proof provisions for self-defense are substantively the same as every other state, with the notable exception of Ohio.

There are 34 states in the US that are SYG states, and 16 that impose a duty to retreat. Among those 16 that impose a duty to retreat all but one also require that, once self-defense is properly raised at trial, the prosecution bears the burden to disprove self-defense beyond a reasonable doubt. Only one state in the entire country, Ohio, requires that the defendant bear the burden of proving self-defense by a preponderance of the evidence.

Conflating SYG with other, entirely distinct, legal self-defense concepts as Professor Campos does here with the issue of the burden of persuasion, and as others often do with respect to self-defense immunity, presumptions of reasonableness, etc., reflects a general media misunderstanding of how SYG operates.

Next sentence:

Such laws, in effect, put the victim rather than the killer on trial, which is exactly what happened in this case.

This is simply nonsense. SYG doesn’t put the victim of a shooting on trial, it addresses only cases where the shooter has demonstrated justifiable use of deadly force and whether there was a legal duty to retreat.  There can be no SYG issue in the absence of otherwise lawful self-defense.  If victims are put on trial as a defense tactic, it has nothing to do with SYG.

And don’t even start with Trayvon Martin.  In the Zimmerman trial, the evidence was overwhelming that Martin was on top of Zimmerman punching Mixed Martial Arts style as Zimmerman was pinned on his back on the ground with his head being bashed into concrete at the time the single shot was fired.  The Zimmerman case, as the Dunn case, turned on whether there was justifiable use of deadly force, not the duty to retreat.

Sadly, Professor Campos is far from the only purportedly legal academic who contributes to such intellectual obfuscation of self-defense law.  Take, for example, this quote from Mary Anne Franks, an associate professor at the University of Miami, in the New York Times:

This trial is indicative of how much of a problem Stand Your Ground laws really do create. [ . . . ] By the time you have an incident like this and ask a jury to look at the facts, it’s difficult to re-create the situation and determine the reasonableness of a defendant’s fear.

As explained, the legal concept of SYG has nothing in particular to do with standards of reasonableness in self-defense cases, at least no more than any of the other elements of a self-defense claim.

Or this quote, from Kenneth Nunn, a law professor at the University of Florida, as reported in the Tampa Bay Times:

Although I don’t think the evidence supports this, it is possible that the jury felt that Dunn was proper to stand his ground as to Davis, but his shooting of the others in the car was excessive.

As we can now all see clearly, the only thing SYG had to do with either the Zimmerman or Dunn trials is that it is used as a convenient political distraction based on a misunderstanding of the law.

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

“And don’t even start with Trayvon Martin. In the Zimmerman trial, the evidence was overwhelming that Martin was on top of Zimmerman punching Mixed Martial Arts style as Zimmerman was pinned on his back on the ground with his head being bashed into concrete at the time the single shot was fired. The Zimmerman case, as the Dunn case, turned on whether there was justifiable use of deadly force, not the duty to retreat.”

What was the overwhelming evidence…other than Zimmerman and witness testimony?

    Photos of his bashed-up head and broken nose? Expert testimony that those injuries were consistent with the MMA-style beat-down?

    There was a mountain of forensic evidence proving Trayvon was the aggressor and attempted to kill George who was the victim of Trayvon’s attempted murder. Unfortunately for dope smoking purple drank guzzling punk Trayvon, law abiding peaceful hispanic George was outmatched physically and was forced to resort to using his firearm to save his own life.

    George should sue the Travon estate for damages.

      vivibee601 in reply to VotingFemale. | February 17, 2014 at 3:38 pm

      LOL that’s why Zimmerman was willing to enter “celebrity boxing match” against DMX a known crazy crack-head rapper that “popular” rappers don’t even mess with?

      Uh-huh…poor lil frail 90lb weakling George.

      vivibee601 in reply to VotingFemale. | February 17, 2014 at 3:39 pm

      Purple Drank? WTH? Estate? What teenager has an estate?

        I R A Darth Aggie in reply to vivibee601. | February 17, 2014 at 4:00 pm

        Trayvon’s dead, ergo there was an estate. May not have contained much, maybe the out-of-court settlement with the HOA? a million and change?

    BrokeGopher in reply to vivibee601. | February 17, 2014 at 3:42 pm

    All of the evidence backs up Zimmerman’s story. His bloody head, the eyewitness who saw Martin beating him, and he waited for the police.

    None of the state’s evidence contradicts him in any material way. That’s pretty overwhelming and adds up to a slam-dunk not guilty.

    Estragon in reply to vivibee601. | February 17, 2014 at 4:31 pm

    All the eyewitness testimony and all the physical evidence was consistent with Martin being the aggressor, on top and beating Zimmerman, and nothing in the evidence contradicted it in any way.

    That’s more or less the definition of “overwhelming,” and if you need more than that, you must have prejudged the case.

    Bruce Hayden in reply to vivibee601. | February 17, 2014 at 8:24 pm

    Please go away. Andrew followed the Zimmerman trial gavel to gavel, and posted much of it here. So, a lot of the posters to this blog apparently know far, far, more about the actual trial than you do. You are apparently stuck on the media narrative of the case, and know almost nothing about what actually transpired at trial, and even the evidence that was not allowed into evidence that likely would have resulted in a remand if Zimmerman had, somehow, been convicted.

    To summarize – almost the entirety of the “evidence” against Zimmerman at trial was the self-serving identification of Martin by his parents as the one yelling for help, plus a lot of evidence-free possible sceneries by the prosecutors.

    Essentially ALL of the extrinsic evidence bolstered Zimmerman’s story. This included grass stains, his injuries, the angle of the shot (which had to have been from below, with Martin on top at the time), etc. Plus eyewitnesses who testified that they saw Martin on top beating Zimmerman, that the shouts for help were Zimmerman’s (and one of them was experienced in hearing people screaming in distress). Etc. The joke at the time was that Zimmerman proved self-defense beyond a reasonable doubt – which the prosecution had a duty to rebut beyond that level.

“This suggests either that they simply do not understand the facts of the case vis-à-vis the issue of retreat, or that they are conflating various other distinct self-defense law concepts with that of SYG.”

OR…

They are so slavishly tied to “the narrative” WRT SYG, they cannot or will not see reality, and WILL misrepresent SYG.

    Haha, my original draft had to be toned down considerably–the flames were messing with the server. 🙂

    –Andrew, @LawSelfDefense

    Ragspierre in reply to Ragspierre. | February 17, 2014 at 4:53 pm

    I bears remembering these are the kinds of people who want you to have a rape whistle.

    Or a full bladder.

    They want you helpless and docile.

      Phillep Harding in reply to Ragspierre. | February 18, 2014 at 2:16 pm

      I’m having some difficulty resolving the advice to someone in danger of being raped with the claims that all rape is about power.

      Seems to me that the advised behavior would encourage a power seeker, but might turn off a sex seeker.

I think people in general have difficulty understanding how persons who initiate aggression can claim to be in fear for their lives. Like it or not, Both Dunn and Zimmerman are perceived to be the initiators of aggression by a significant number of people. They were not fearful enough to refrain from engaging in confrontation with their victims.

    Yeah, right? How dare that George Zimmerman serve as a neighborhood watchman after a spate of robberies and attempted home invasions in his neighborhood! The nerve! And to follow a shady-looking kid walking around suspiciously in the rain, ducking under eaves of residences? And to follow him to see where he went? How reckless! How aggressive! Let’s all fold into the fetal position and wait for the Gubmint to come take care of us! Baaaaaaaa!!!!!!

      vivibee601 in reply to Paul. | February 17, 2014 at 3:16 pm

      Neighborhood watch does not give authority to stalk someone in the dark and provoke a confrontation with them. He should’ve called law enforcement and waited for them so they could locate the kid and ascertain what was going on.

      Shady-looking? The kid was wearing what 90% of high school kids wear on a cool rainy night – Khaki pants which were not sagging, a t-shirt, sneakers and a hoodie sweatshirt.

      The kid was only described as suspicious by Zimmerman – who needed to say that to cover his a**. Of course if a weird beady eyed individual follows you on a dark rainy night without identifying himself and you’re a kid, you’d probably do some ducking too.

      It’s simply that there was no survivor to refute Zimmerman’s story. Dead kids don’t talk.

        damn you are stupid.

        BrokeGopher in reply to vivibee601. | February 17, 2014 at 3:52 pm

        Um, he did call law enforcement, remember? They asked him where the guy went. He got out to go see and got attacked. Enough with your stalker fantasy. Let’s live in the real world.

        Estragon in reply to vivibee601. | February 17, 2014 at 4:33 pm

        All lies. Every single word.

        If you wish to make up your own facts and come to your own conclusions, that’s your privilege, but don’t expect anyone to pretend along with you that those inventions apply to the actual facts of the case.

        Sanddog in reply to vivibee601. | February 17, 2014 at 6:37 pm

        I know the concept of self reliance is foreign to you but you might want to consider that a sizable portion of the population would prefer to take care of themselves rather than depend on others. You know, people who have jobs and don’t live in mommy’s basement trolling (badly) internet forums?

    Trayvon was the initiator of aggression thus, by your reasoning, had no claim to victimhood. 😉

      vivibee601 in reply to VotingFemale. | February 17, 2014 at 3:51 pm

      Who knew going to the corner store and walking back home in the rain while talking on your cell phone is “aggressor” behavior?

        Ragspierre in reply to vivibee601. | February 17, 2014 at 4:38 pm

        Why don’t we short-cut this…

        Tell us what you DO understand about this case, because having you expose what you DON’T know about it is painful.

        For the love of gawd…!!!

        I suppose you subscribe to the democrat narrative: “little skittles-clutchin’ Trayvon was only 8 yrs old and was gunned down in the street like a dawg for bein’ black by racist creepy-ass cracka George because people shouldn’t be allowed by democrats to own icky guns due to racist constitution.”

        Did I leave anything out, Professor “vivibee601?”

        citizenjeff in reply to vivibee601. | February 17, 2014 at 8:09 pm

        You’re a bore, vivi.

    I R A Darth Aggie in reply to vivibee601. | February 17, 2014 at 4:05 pm

    Zimmerman are perceived to be the initiators of aggression by a significant number of people.

    It’s not a popularity contest. And you’re wandering dangerously close to the position that Zimmerman had no right to take a leisurely stroll in his own neighborhood.

    So, now, if I understand your reasoning, when I walk home from an evening at the pub, and someone is a bit a head of me, and they’re walking the same way I am, I have committed an aggression against them? and that they have the right to defend themselves against me?

    Really?

    tom swift in reply to vivibee601. | February 18, 2014 at 2:38 am

    I think people in general have difficulty understanding how persons who initiate aggression can claim to be in fear for their lives.

    Obviously, if you pose a problem incorrectly, you may be unable to understand the answer.

    “Initiate aggression” is basically meaningless in a self-defense situation. The relevant question is, who made a dangerous physical attack on whom?

    To “initiate aggression” could mean that one person invaded another’s “personal space”; it could mean that he was was walking around while wearing a rival school’s sweatshirt; it could mean any number of things, all of them physically harmless. None present self-defense situations. Similarly, a minor physical aggression leads to no self-defense issues. If someone steps on my toes, that’s physical, but has no potential to be deadly. If a two-year-old attacks me, there’s no real danger to me.

    In the Zimmerman case, the only “aggression” of interest is who did the punching, and who was banging whose head into the sidewalk. These are physical assaults which can result in serious injury or death.

    They were not fearful enough to refrain from engaging in confrontation with their victims.

    Again, “confrontation” is not the issue. Actual physical assault with potentially deadly force is the issue, and nothing less.

    Another misunderstanding is “fear”. One need not be quaking in one’s boots to justify self-defense. When someone says, “I fear it is going to rain,” it hardly implies that he’s terrified of the possibility. And the same applies to defensive situations.

    “Like it or not, Both Dunn and Zimmerman are perceived to be the initiators of aggression by a significant number of people.”

    It’s understandable that people think Zimmerman was the aggressor as they were completely misinformed by the media. But misinformation does not change the facts of the case and the evidence that was presented at trial, it just breeds ignorance and misplaced anger.

    Conversely, Dunn was the person who initiated the confrontation and who, when a teenager mouthed off to him, became so angry that he opened fire on a car full of teens. At least the media got that right, even if they still can’t figure out SYG.

“Like it or not, Both Dunn and Zimmerman are perceived to be the initiators of aggression by a significant number of people.”

What care should I have for ignorant perceptions? I have none. 🙂

Heck, some people even claim to believe in such things as CAGW. Ridiculous, but there it is.

–Andrew, @LawSelfDefense

I think they’re just using SYG as another term for self-defense. I think they’re trying to eliminate legal self-defense, but can’t say so, because people are in favor of self-defense as a concept. So they substitute the new and scary term “stand your ground” when talking about self-defense law and thus outrage is created.

    vivibee601 in reply to BrokeGopher. | February 17, 2014 at 3:06 pm

    But seriously, how can you stalk people in the dark without identifying yourself and/or shoot into a vehicle full of unarmed kids 10 times and call that self-defense?

    On the face of it, it doesn’t seem “reasonable”.

      vivibee601, Dude really, you have no facts, no understanding of Self Defense or Stand Your Ground, you didn’t watch the trails and yet you claim to know something. There is really only one word for someone like you …

      BrokeGopher in reply to vivibee601. | February 17, 2014 at 3:23 pm

      You can quit now with the “stalk” terminology. He went to see where the kid went. The dispatcher had asked him if he saw where he went. Identify yourself? To whom? He’d lost sight of the kid. Didn’t see him again until he came out of the dark and started fighting.

      No matter how the fight started, once you’re on your back and having your head beat into the concrete, it is most certainly self-defense. Textbook case.

      If you’ve got any witness that saw it happen differently, please let us know. The imaginations of Al Sharpton are not admissible evidence.

    Gremlin1974 in reply to BrokeGopher. | February 17, 2014 at 8:18 pm

    This, very much this. It’s easy to tell that they are intentionally misusing the terms, because if you substitute “Justifiable Self Defense” with SYG in their comments they are effectively saying the same thing. These are folks that say they are part of the Anti-Stand your ground crowd, when in reality they are Anti-Self Defense.

    Also, it is actually interesting when you think about it. The “Stand Your Ground” law in Florida basically added/altered 1 to 2 sentences of Florida’s rather lengthy Justifiable Use of Force law.

    Also, I found a great response to the Zimmerman conspiracy nuts. I just ask them how it can be “Stand your ground” when both sides agree that neither Zimmerman nor Martin were standing at the time? I know its not particularly accurate representation of the law or the concept, but it is fun to watch the village idiots heads almost explode.

Ridiculous you say? Interesting!

MouseTheLuckyDog | February 17, 2014 at 3:40 pm

I disagree about being able to drive away if Davis actually pulled a shotgun. This is based on two factors. He was parked close to the only entrance of the store and his girlfriend was in the store.

If he had pulled away, he would have exposed her to potential fire. Especially if they saw her get out of the car and associate her with him.

Had they been parked far away from the entrance is a different story. Then he could have pulled away.

Also, it’s debatable, but you could argue that with two ways to safety, car and gun, Dunn would have fired faster then he could have pulled out.

As for parking next to the van, I personally prefer to [park as far from the store as is possible — just for the exercise and put as much space between me and other people. But I find it hard to blame other people for doing things that are lawful.

Another scenario to consider, if Davis had a shotgun and Dunn pulled away before he flashed it just went the music came back up. Would Davis have gotten out of the van and followed him?

Recently there have been complaints from some popular black men. They say they are tired of walking past cars and hear a white person lock the door. But isn’t pulling away similar. It seems to me that we have a dichotomy[1] here. Either do things that are safe and nonconfrontational or do things that don’t upset other people.

[1] Irony of ironies, I use dichotomy here because I can’t spell dillema or whatever it is.

    Jordan Davis did not have a gun. He had no interest in Dunn or Dunn’s girlfriend. He was a 17yr old kid riding around with his friends, listening to annoying music during the Thanksgiving holidays.

    Only Dunn had a gun.

      Ragspierre in reply to vivibee601. | February 17, 2014 at 3:56 pm

      Ah, for the gift of omniscience…

      Cripes…

      Gremlin1974 in reply to vivibee601. | February 17, 2014 at 8:25 pm

      “Jordan Davis did not have a gun. He had no interest in Dunn or Dunn’s girlfriend.”

      Ahh, good to know. Now, you were standing how far away from the confrontation between Dunn and Davis?

      Also, how long ago did you develop the ability to read Mr. Davis’s mind and how long before this incident were you aware of his thoughts and intentions?

      You have, of course, contacted Mrs. Corey and offered to testify to the above under oath?

      Because unless you can give credible answers to the above 3 questions you are just making assumptions and doing what assumptions usually do.

Andrew, I’m quite sure that every single one of these “lerned perfessers” knew exactly what they were doing. I think they are just playing stupid to play to their base.

So umm, who IS, Mr. OR Ms. Thumbs Down, huh?

If ya’ got something to TYPE, TYPE IT!

    murkyv in reply to JP. | February 17, 2014 at 4:13 pm

    Just look at the comments of the one person on here who seems to know nothing of either case except to regurgitate the Lefts Talking Points

    You fell for it AND blew your cover vivibee601. He-He-He..

    Let me re-introduce myself. I’m JP45ACPHollowPointAmmo.com

Sammy Finkelman | February 17, 2014 at 3:56 pm

They are not trying to eliminate self-defense -= they are niot trying to fchange anything, which is why you have all this misinformation that there is some special Florida law (Stand Your ground) that enabled Michael Dunn not to be found guilty of murder.

In reality what you are dealing with here, is where objectively, this was not reasonable at all, but the defendant made a claim of self-defense, which not all members of the jury were absolutely certain was a lie.

Sammy Finkelman | February 17, 2014 at 3:58 pm

Even his first statement was probably a lie, but later he learned what the law was, so he changed his stry to fit with the law.

The point that this had to be a lie could have been better made – that he thought he had to say this to have a legal defense, but he hadn’t said anything like that at the beginning, nor was it necessary for him to believe his life was in danger for him to shoot. It was enough for him to be put in the position of having to back down, and being angry at the boy.

His worst fear would have been, really, the possibility of being punched. To which could be added maybe the fear the boy’s reflexes were better than his, and if he pulled out his gun in an attempt to prevent that, but didn’t fire, it would be grabbed from his hand because he was too close.

But that would not have been a good defense.

In any case, continuing to fire after they start to flee makes it look more like pure anger.

Perhaps the instructions weren’t clear on what the law was, not in the case of what Dunn tesified to, but in the case of what jurors might have speculated, really happened.

I have to disagree with this part:

>>That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.

>As already discussed, this case has nothing to do with the legal concept of SYG. Nor does Florida’s self-defense law–neither its SYG nor any other provision–have any application of “reasonableness” that differs materially from any other state’s self-defense law.

The way you’ve described SYG here, it appears that no case would ever involve SYG. Your description of SYG suggests it’s not really an affirmative defense, but the elimination of an element of the affirmative defense that you might have to argue in other states (I’ll add that, according to the (Christian Science Monitor){http://www.csmonitor.com/var/ezflow_site/storage/images/media/content/2013/states-with-stand-your-ground-laws/16557217-2-eng-US/States-with-Stand-your-ground-laws_full_600.jpg], a majority of states do not have blanket stand your ground laws, despite your contention otherwise). Since SYG eliminates the element of the affirmative defense that you had no other reasonable alternative post-threat, you don’t have to prove it, so why would it come up? The prosecutor’s not going to bring up that you’re ineligible for the self-defense justification because you had an out post-threat, since that’s no longer relevant to the analysis.

    Hahaha, don’t be silly.

    Of course SYG cases can come up as I’ve described–they do so commonly.

    Hypothetical: I accidentally cut you off in traffic. You become enraged, follow me, honking your horn, closing dangerously on my bumper, flashing your lights, gesturing that I’m “Number 1!”

    There’s a red light. I stop there, with the intersection before me. You stop beside me, throw your car in gear, step out with a lengthy tire iron.

    The light turns green as you approach my driver’s side window and begin to raise your tire iron. Nothing obstructs me from safely driving away before you can bring the tire iron down.

    In a duty-to-retreat state, I would have a legal duty to place my foot on the accelerator and proceed safely through the intersection, before I would be authorized in presenting my pistol and shooting you in defense against your deadly force attack.

    In a SYG state I would not have that duty, and could stand my ground, and meet deadly force with deadly force.

    See? Not that hard with a little brain grease.

    As for your ridiculous claim that I am incorrect in arguing that a majority of states are effectively stand-your-ground, that’s a function of your limited understanding.

    A legal duty doesn’t appear from the vapors of hopeful Progressive fascist dreams. It can exist only as a function of law.

    Only 16 states have a generalized legal duty to retreat. In the remaining 34 states, there is no such duty. Absent such a duty–need I even say it?–there is no such duty.

    The 34 states lacking such a duty, then, are effectively SYG states, whether they have a statutory provision that uses that term or not.

    California is one such example of a state that has no SYG statute, but has always been a SYG state.

    Indeed, CA is arguably the most aggressive SYG state in the nation–not only may you stand your ground against an attacker, you may actively pursue your attacker if necessary for your safety. And the jury is instructed precisely in that manner.

    Good. Day.

    –Andrew, @LawselfDefense

      If you’re going to insult me, at least try to understand my argument, you’ve attacked nothing but a straw-man. You’ve describe effectively the difference between what would happen in an SYG state and what would happen in a non-SYG state, but you’ve not described why it would come about at trial. There may be a difference I’m not seeing in general, which is my point, but you have not pointed it out. Unless they’re arguing about what state they’re in or whether the law exists at all, the only difference I see is that in SYG states, an element or evidenciary aspect of the justification that exists in other states (while some impose an affirmative duty to retreat, all non-SYG states allow, in certain circumstances, the post-threat ability to retreat in as evidence for some other elements) is simply not present. The prosecutor has no reason to bring it up, because s/he knows it’s precluded. Do you see what I’m trying to address now?

        Awing1 in reply to Awing1. | February 17, 2014 at 5:05 pm

        *”all non-SYG” should be “some non-SYG”, I’ve been typing and re-editing a bit to fast.

          Phillep Harding in reply to Awing1. | February 18, 2014 at 3:01 pm

          “And so claiming that the lack of time devoted to them is proof that SYG didn’t apply is ludicrous.”

          With Zimmerman, your claim is asinine, absurd, and ludicrous. The first indication of a possible threat became apparent with a blow that knocked GZ from his feet. Retreating from such a position is very difficult. The threat further developed with TM dropping on top of GZ, at which point retreat became impossible. For you to claim that the GZ/TM case had anything to do with SYG indicates a total lack of knowledge, intelligence, or common sense on your part.

          Dunn? Well, that was a different situation. I don’t see SYG there as I’m not convinced Dunn was threatened by anything more than loud music (which I detest and find physically painful), and bad manners by a bunch of idiot teenagers.

        “. . . the only difference I see is that in SYG states, an element or evidenciary aspect of the justification that exists in other states (while some impose an affirmative duty to retreat, all non-SYG states allow, in certain circumstances, the post-threat ability to retreat in as evidence for some other elements) is simply not present. The prosecutor has no reason to bring it up, because s/he knows it’s precluded. Do you see what I’m trying to address now?”

        No, I do not see what you’re trying to address.

        Indeed, I’m having great difficulty understanding what you’ve written at all.

        You’re evidently too smart for me.

        –Andrew, @LawSelfDefense

        P.S. “Evidentiary”

          Let me put it in real simple terms for you then.

          You’ve stated that the Stand Your Ground law was not even at issue in at trial. I’m asking when a Stand Your Ground law ever would be at issue at trial. If SYG statutes just affirmatively preclude the common-law duty to retreat in order to claim self-defense, then what is there to say at trial, ever, about Stand Your Ground? It’s an element the defense doesn’t need to address, and the State is precluded from addressing, why would it ever come up in a state that has an SYG statute?

          I’ll make it simply for YOU.

          SYG can only ever be relevant to a case where retreat would have been required absent SYG.

          Therefore a self-defense case cannot in any honest way be termed a “SYG case” unless it would have turned out differently but for SYG.

          That means the case would have had to involve a safe avenue of retreat not taken prior to the use of deadly force in self-defense. So, not Zimmerman. Not Dunn. But many others.

          How’s that?

          –Andrew, @LawSelfDefense

          “That means the case would have had to involve a safe avenue of retreat not taken prior to the use of deadly force in self-defense. So, not Zimmerman. Not Dunn. But many others.”

          This is what I’m trying to get at, how would you ever know with Zimmerman and Dunn by just looking at what was focused on at trial? Lets say they had a safe avenue of retreat after the threat, it was clear they did, and everyone knew it. I still don’t see why it would come up at trial given that, with the SYG law, it’s now irrelevant.

          BrokeGopher in reply to Andrew Branca. | February 17, 2014 at 5:49 pm

          You mean, for example, if George Zimmerman had the ability to teleport over short distances. He could have teleported himself from under Trayvon Martin and back to the safety of his car. Then it would be a SYG case, and Zimmerman would have been acquitted because of SYG.

          My point is that the trial would have gone the exact same. Mr. Branca is claiming we know it wasn’t an SYG case because there was no focus on post-threat escape. But because of SYG, post-threat escape is irrelevant, so it would NEVER be the focus of a case in Florida.

          Do you understand my point now?

          “This is what I’m trying to get at, how would you ever know with Zimmerman and Dunn by just looking at what was focused on at trial?”

          By looking at the facts in evidence.

          In the same way I know that tax laws were irrelevant to the case, despite the fact that they weren’t focused on at trial. Or civil liability laws. Or family law. Or real property law. Or estate law. Or any other area of law irrelevant under the facts of the case.

          If you still don’t get it, we’ll just have to agree that you still don’t get it.

          –Andrew, @LawSelfDefense

          “We do know that precious little trial time was spent on the issue of whether Dunn should have or could have driven away once he heard loud music that bothered him. Almost no time was spent on whether Dunn could have driven away once he believed that Davis was threatening him with a shotgun.

          That is significant, because SYG only addresses a duty to retreat once the defender would otherwise be justified in the use of deadly force.”

          That’s not a claim about the “facts in evidence”, that’s a claim that the fact that little trial time was spent on an issue that SYG law declares legally irrelevant is significant to whether the law declaring it legally irrelevant had any effect on the case.

          If you don’t understand why that’s an illogical conclusion to draw, we’ll have to agree you don’t understand.

          SYG can only ever be relevant to a case where retreat would have been required absent SYG.
          **********
          IMO thats the salient point that may be what confuses many.

          That’s not what’s missing, I think we all understand that.

          What I don’t get is why Mr. Branca is claiming that the lack of focus on post-threat retreat options during trial significantly suggests that there were no post-threat retreat options. No case in Florida would focus on that, because it’s not relevant to the analysis in Florida. That’s the whole point of the SYG law. Let me illustrate by ridiculous example:

          Pretend a bunch of states had laws that said you can’t be in a restaurant in that state ever, but there’s an affirmative defense that if you’re wearing a non-blue shirt, you’re justified in being in a restaurant. And then Florida came along and said “No, that’s stupid, we’re going to pass a ‘wear your blue shit’ law ensuring that the blueness of your shirt has no bearing on whether you can claim the affirmative defense of wearing a shirt.

          Someone then allegedly goes into a restaurant gets arrested. They make the affirmative defense that they were wearing a shirt, and the jury acquits, and there’s a whole uproar about how his shirt was really blue and if it hadn’t been for those darned ‘wear your blue shirt’ laws, this guy would have been convicted.

          Branca is essentially claiming in this scenario that, because there was no time spent on the color of the shirt at trial, the ‘wear your blue shirt’ law had no effect. That statement is clearly wrong, regardless of what color the shirt actually was.

          “Branca is essentially claiming in this scenario that, because there was no time spent on the color of the shirt at trial, the ‘wear your blue shirt’ law had no effect. That statement is clearly wrong, regardless of what color the shirt actually was.”

          Good thing, then, that I’m not saying that.

          I’m saying SYG was not relevant under the facts of the Dunn trial, because it wasn’t relevant under the facts of the Dunn trial.

          That’s not a difficult to comprehend statement.

          If you can’t understand that, I have nothing further to say on the matter.

          –Andrew, @LawSelfDefense

          replying to the fool.
          you’re hopeless and a waste of time, figure it out yourself if you can.
          somehow I doubt you will.
          but keep writing all those paragraphs showing your confusion, its amusing.

          Really? So you didn’t say these words??

          “We do know that precious little trial time was spent on the issue of whether Dunn should have or could have driven away once he heard loud music that bothered him. Almost no time was spent on whether Dunn could have driven away once he believed that Davis was threatening him with a shotgun.

          That is significant, because SYG only addresses a duty to retreat once the defender would otherwise be justified in the use of deadly force.”

          That’s not what you wrote at all, huh? That’s not in the article I’m looking at? Or are you saying that this isn’t you claiming that the amount of trial time on the issue is significant to whether SYG is relevant? Maybe you just typed those words and had no real meaning to them, right?

          I’ve told you repeatedly what _I_ am saying.

          Will this make you happy?

          “The passage you cite was a poor expression of my position. What I’ve typed in these comments accurately presents my position on the matter.”

          Done?

          –Andrew, @LawSelfDefense

          And, good God, Awing1, you have a lot of free time on your hands.

          Obamaconomy, I’m guessing?

          –Andrew, @LawSelfDefense

          This entire thread has been me saying “I don’t understand how you can hold X position” and you responding first with “What do you mean, Y makes perfect sense (insert snide remark)” then you devolving to “I never held X position” and now insinuating I’m only able to respond because I’m unemployed (I actually do hold a part time job in addition to my obligations at Cornell, two and half years of law school here teach you how to read, write, and respond quickly while multitasking).

          I called you out for your illogical argument, and instead of discussing it, you chose to attack straw-men and then misrepresent your position wholesale. This blog is better than that.

          Gremlin1974 in reply to Andrew Branca. | February 17, 2014 at 9:03 pm

          Let me try Andrew.

          Awing1, no I am not a lawyer, but since I carry a firearm for self defense I make it a point to understand self defense law, also with my permit I am basically licensed to carry in more than 1/2 the country, so it pays to understand the laws from other places.

          The way I am reading your question is that you are asking when the phrasing of the concept of Stand your ground would be applied in the trial/legal process.

          I can see 2 times when SYG would become an issue. The first is in an hearing where someone is requesting immunity based on self defense. At that time the person has admitted that they used deadly force, however they are requesting that their use of deadly force be ruled as justified and be granted immunity. So in that hearing SYG basically says that the prosecution can’t say that because you didn’t try to run it proves that your use of deadly force was not justified.

          The other time that SYG comes into play is during Jury deliberations. Take a look at the jury instructions from the Zimmerman trial. (relevant paragraph copied below and link provided.)

          “If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”

          https://legalinsurrection.com/2013/07/zimmerman-final-jury-instructions/

          Since Florida uses standardized jury instructions the instruction for the Dunn jury would have been basically the same. Basically what the SYG portion says is that during the deliberations you can’t use the fact that someone didn’t try to run away to declare their use of force unjustified. At least that is my understanding of the practical application of the statute.

          I may have made it worse, but hopefully I helped.

          @Gremlin1974

          The issue I am trying to get at is this:

          Mr. Branca claimed that the lack of trial time devoted to post-threat retreat options strongly suggests that Florida’s statutory SYG law had no effect on the case.

          The problem with that claim is that, because of SYG, homicide-based trials in Florida will almost never devote significant time to post-threat retreat options. There’s no longer a reason to bring them up. And so claiming that the lack of time devoted to them is proof that SYG didn’t apply is ludicrous.

        Gremlin1974 in reply to Awing1. | February 17, 2014 at 8:39 pm

        “common-law duty to retreat”

        As far as I know there is not such thing as a common law duty to retreat. In the states that have a duty to retreat, that duty has been added to the law, therefore, before it was added there was no duty to retreat until it was made a duty. You seem to believe that a duty to retreat is a basic concept of law, when in fact it is not. As a matter of fact if memory serves the “duty to retreat” has only been around since the late 1800’s.

          “The duty to retreat emanates from common law, rather than from our statutes. ”

          Weiand v. State, 732 So. 2d 1044, 1049 (Fla. 1999)

          It’s funny you should mention the 1800s, the common law duty to retreat comes from England and dates back as far as the 1600’s and it wasn’t until the mid 1800s that some states in the US began to break from this common law duty.

        Gremlin1974 in reply to Awing1. | February 17, 2014 at 10:35 pm

        Also, you could just go with the thought that since you are discussing this point with pretty much THE NATIONALLY RECOGNIZED EXPERT IN SELF DEFENSE LAW in the US. One might come to the conclusion that he just understands the subject better than me or you and that he is not yanking your chain on purpose.

          I never accept appeals to authority when the mechanical logic doesn’t add up. An appeal to authority is useful only for factual aspects of the debate, not for logical procedure.

          And Mr. Branca has been egregiously wrong before.

    DaveGinOly in reply to Awing1. | February 18, 2014 at 12:09 am

    “no case would ever involve SYG.” Bingo.

    See my comment below. SYG prevents the state from imposing a duty to retreat, and prevents the prosecution from charging a person with “failure to retreat.” Therefore the subject of whether or not the suspect/self-defense shooter could have retreated is always irrelevant to a case. The defendant doesn’t have to raise the defense because the law prevents the prosecution from making the accusation/charge. SYG is not something that needs to be “invoked,” and because there can be no argument over a “failure to retreat” no case can be a SYG case because the issue simply doesn’t come up.

      Wrong.

      –Andrew, @LawSelfDefense

      To elaborate on why you’re wrong for Mr. Branco, the subject of whether you could have retreated is only irrelevant post lethal-threat. There absolutely could be a pre-“L”threat point at which it was reasonable for you to walk away, and your failure to do so made you the aggressor, therefore nullifying the protections of the SYG law in Florida.

      Don’t try to read more into what I’ve said than what’s there, what you find is nothing more than your imagination, and I have to problem informing you of that.

Sowing confusion is what the race-baiters and anti-gun crowd do best. The facts are not on their side, but the ranting and raving raises money as well as the rabble.

    I agree. These gun control tyrants want anyone who defends their life with a gun to go to prison. The ‘Abandon Your Ground Else Go To Prison’ states want to make owning a gun so legally onerous people will just give up their rights under the second amendment.

      platypus in reply to VotingFemale. | February 17, 2014 at 7:29 pm

      We have long had an outlaw policy up here in the Pacific Northwest regarding spotted owls. I cannot vouch for how often it happens but it goes like this:

      if you find a spotted owl on your property, shoot it and bury it way out in the woods, and don’t tell anyone. The short version was Shoot, Shovel, and Shut up.

      These gun haters won’t be happy until some people start thinking that this is a viable method of dealing with the haters of the Second Amendment. And the only evidence that it might be going on would be the increase in missing person reports.

      I hope this blood feud never gets that bad.

        Phillep Harding in reply to platypus. | February 18, 2014 at 3:27 pm

        Not just spotted owls. Open secret among loggers, farmers, ranchers, etc, that any animal that /might/ be put on the endangered species list will get slaughtered and buried in order to avoid the complications.

The other problem with Dunn’s testimony is that he claimed he initiated the call to his neighbor while traveling home and mentioned that he had something important to talk about. In other words, he wanted the jury to believe that he had decided to turn himself in; but first he wanted to get the counsel of his friend. IIRC, the phone records indicated that the friend had made the phone call to Dunn (not the other way around). Rhonda also testified that she heard their full conversation in the car. Dunn said nothing about needing to talk about something important. I could be wrong, but I think Dunn still thought he might not have to answer for his actions (esp. if nobody saw his license plate number).

I was posting in response to Sammy. ^^^^

MouseTheLuckyDog | February 17, 2014 at 4:55 pm

While it may be important to stay around from a legal point of view. Let us consider what will happen if you do.

Assume that the facts clearly point to elf defense. Assume also that there is clear evidence of those facts. A person seeing you being assault. Injuries indicating you were assaulted. The lead detective and his partner believing you defended yourself. You even knew that the police were someplace nearby. You have a good a case as is likely to come across a judges docket.

What is going to happen? Someone will portray your attacker as an “innocent twelve year old boy”. Portray you as a “cop wannabee”. They’ll dig up all sorts of things from your past. Dig into your personal life. And in the end if you are acquitted, you will still have people from the state going on national TV calling you a murderer. You will owe millions in legal fees. No one will hire you. Every little thing that happens to, like for example, speeding tickets, or a divorce, will get plastered all over the news.

So if there is a likely hood that the cops will not find you, why would you not try and avoid the police? Because if you do, then either way you will be screwed.

    BrokeGopher in reply to MouseTheLuckyDog. | February 17, 2014 at 5:20 pm

    I think I’d rather be in Zimmerman’s post-trial situation than Dunn’s. Everything is better outside of prison.

    Well, that’s different. (I have no problem with “different”; the thumbs-down isn’t from me.)

    So, a violent mixed-race self-defense encounter can proceed along several courses (arranged in order of benefit to the assaultee) –

    1. The victim can successfully fight off the assault, lie low, and not get caught.
    2. The victim can successfully fight off the assault, go clean with the police and the law, get crucified by the American Racist Party and the press, and end up bankrupt.
    3. The victim can suffer through the assault, survive it, and maybe end up bankrupt if the medical bills are extensive.
    4. The victim can successfully fight off the assault, lie low, get caught, go to jail, and end up bankrupt.
    5. The victim can suffer through the assault, and hope he has a nice funeral.

    Zimmerman was limited to (2) vs. either (3) or (5).

    Dunn most likely was planning to go with (1) but ended up with (4). He should have tried (2). In retrospect it seems very probable that (3) and (5) didn’t apply.

      Bruce Hayden in reply to tom swift. | February 17, 2014 at 8:42 pm

      Zimmerman was stuck, regardless, since the police were already on their way there when the fateful shot was fired. He probably didn’t have a chance to flee, and even if he had fled, he likely would have been high on the suspect list, given his recent call with the non-emergency police dispatcher.

        tom swift in reply to Bruce Hayden. | February 17, 2014 at 8:53 pm

        Of course.

        Just because I enumerated five possibilities, there’s no implication that any party involved has a free choice of all of them. In fact, he may have no choice at all.

    I think everyone should defend elves. 🙂

While these leftist wonks are truly ignorant, their conflation is a practiced, deliberate rhetorical device:

Self-defense = SYG = license to kill
semi-automatic rifle = assault weapon = machine gun
etc.

This enables them to argue ad hominem:
Do you think everyone should have a machine gun?
Do you have a licence to kill black children?

They are not in the least interested in an exchange of ideas.

You should target the matador, not chase the cape.

Doug Wright Old Grouchy | February 17, 2014 at 5:34 pm

Hummm! Looks like LI is being hit once again by a gang of TROLLers, you know, the ones that can’t show their faces because they’re too schizoid.

Of course, the best way to treat these trolls is to ignore them. An exception is to hit them once, harshly, with facts, and then to ignore their pitiful future attempts at rationality.

Still, if one were to engage these troll scum, hit at them hard with facts, they cannot accept that as they only exist in a mental state of confusion. Realize that engaging trolls is a futile effort; really your call as to how you spend your time!

    These trolls make excellent willing punching bags. 🙂

    I’m with Doug. Trolls? What trolls? 🙂

    –Andrew, @LawSelfDefense

      If you’re under the impression that I’m just a faceless internet troll, you’re welcome to come to Ithaca any time before the NY bar and have a drink. We can discuss further whether or not it’s logical to assume that, because an argument that’s forbidden under Florida law wasn’t made at trial, that Florida law must not have been relevant to the case.

        “We can discuss further whether or not it’s logical to assume that, because an argument that’s forbidden under Florida law wasn’t made at trial, that Florida law must not have been relevant to the case.”

        Why would I discuss that? I’m not making that assumption.

        Ithaca’s lovely, and if my memories from college are valid it has plenty of beer, but I’ll decline the invitation, thanks anyway.

        –Andrew, @LawSelfDefense

        Doug Wright Old Grouchy in reply to Awing1. | February 17, 2014 at 6:15 pm

        Ah, we shall recognize trolls by their own actions! They are a fascinating breed!

OH MY! And, from the Left side of the aisle, no less..

Internet Trolls Really Are Horrible People

Narcissistic, Machiavellian, psychopathic, and sadistic.

By Chris Mooney

http://www.slate.com/articles/health_and_science/climate_desk/2014/02/internet_troll_personality_study_machiavellianism_narcissism_psychopathy.single.html

I don’t believe they are confusing the difference. I believe it’s just the ongoing lies to get more gun control.
When has the gun control crowd ever told the truth?

I don’t believe they actually misunderstand the law. I suspect they fully understand the concept of Stand Your Ground and find it abhorrent because it empowers individuals instead of making them submissive. That, simply, cannot be allowed.

Guys, vivibee601 is just trolling you.

His goal is to spike the thread so that it becomes about people trading insults instead of discussing the Dunn case.

Oh-Oh Andrew, umm, Mr. Branca sir..here’s another

http://is.gd/wiWpHs

“Arkansas man guns down 15-year-old girl for egging son’s car as a prank”

However, there IS a big difference, as you will see, if you do care to see, that is.

    Gremlin1974 in reply to JP. | February 17, 2014 at 10:59 pm

    I don’t really like to speculate before all the facts are known, but I happen to live not very far from where this occurred and it certainly sounds to me like Mr. Nobel will be one of the newest residences on Arkansas Death Row.

    Here is the good news for all the Liberals out there Arkansas isn’t a SYG state, that aught to make them happy.

      tom swift in reply to Gremlin1974. | February 17, 2014 at 11:14 pm

      The story is short on facts; expect it to be long on spin. I note that vandalism is merely “a prank”. That’s a good start; I’m certain a long parade of euphemisms will follow.

      I do appreciate the sheer comic lunacy of the “terrorism” charge. They must have quite a sense of humor ’round those parts.

      But so far, nothing of interest from a self-defense standpoint.

    Phillep Harding in reply to JP. | February 18, 2014 at 3:07 pm

    Isn’t it legal for police to shoot kids who egg their patrol cars?

Campos is a piece of work. His progressive opinions are, or at least were, inflicted on the people in Colorado on a routine basis in the opinion pages of the Denver Post. At one point, I complained to both the paper and his dean, to, of course, no avail, about his fact-free rants.

On a more fundamental level, there can be no SYG cases in FL. Why? Because the law does not provide a positive defense to suspects in criminal cases – it prevents the state from prosecuting shooters who had an opportunity to safely retreat. In cases of claimed self-defense, this limits the question to “Was the shooting justified?” There can be no question “Did the shooter fail to retreat when possible?” Because “failure to retreat” is not a crime, and because SYG removes an obligation (rather then imposing one), no shooting case in a state with an SYG law can be an SYG case because the SYG law precludes the accusation and thus obviates the need for a defense to argue that retreat was not possible or was unsafe. With no need for defendants to invoke the law, no case is an “SYG case.” The subject doesn’t, and can’t, come up.

    “. . . the SYG law precludes the accusation and thus obviates the need for a defense to argue that retreat was not possible or was unsafe.”

    Nope.

    Just because SYG does away with the legal DUTY to retreat does NOT mean the State cannot raise the failure to take advantage of a safe avenue of retreat as a factor in the overall reasonableness of the defensive conduct.

    There ARE states where such an argument is prohibited by law–Texas is one example–but Florida is not among them.

    SYG in Florida (and most SYG states) merely does away with the legal DUTY to retreat. It does NOT mean that a failure to retreat is unmentionable by the State.

    –Andrew, @LawSelf DEfense

      madmarten in reply to Andrew Branca. | February 18, 2014 at 2:12 am

      Andrew, firstly, I want to thank you for your detailed explanations about self-defense and SYG law.
      I have to admit it has become a little mental obsession of mine to worry if these SYG laws (esp in Florida……) are bad for society. According to you thought, it apparently is really overblown.
      So if I understand you correctly, you state that SYG only applies (or would be applicable in way different from a non-SYG state), at the exact moment the deadly threat appears and not before?
      I read the Florida statute, “If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.”
      My lay persons reading found no indication of this strict switch. It says “force with force, including deadly force”, which to me means that I can respond with in kind force before deadly force becomes necessary. Am I messed up?

        “My lay persons reading found no indication of this strict switch. It says “force with force, including deadly force”, which to me means that I can respond with in kind force before deadly force becomes necessary. Am I messed up?”

        I was speaking in the context of deadly force. It’s important to distinguish between deadly force and non-deadly force conflicts, because much of the self-defense law changes as one transitions to deadly force.

        If we’re talking only about non-deadly force, only four states impost a duty to retreat before the use of non-deadly force in self-defense.

        In the other 46 states, even among what we’ve been calling the duty-to-retreat states, one has no legal duty to retreat before one uses merely non-deadly force in self-defense (thus, they are effectively SYG states in the context of non-deadly defensive force).

        This is another common way that duty-to-retreat states trip strip defenders of self-defense on the issue of retreat, when these defenders would be acquitted in a SYG state:

        A defender armed with a pistol is fallen upon by an attacker using with non-deadly force. The defender is in a duty-to-retreat state, but one of the majority that do not impose that duty until the defender must decided to use deadly force. The defender thus stands his ground and meets the non-deadly attack with a non-deadly defense. So far, all good.

        The attacker, finding he is losing the non-deadly fight, decides it is time to tilt things in his favor and pulls out a knife.

        In a SYG state, the defender could simply stand his ground, pull out his pistol, and meet deadly force with deadly force.

        In a duty-to-retreat state, however, the defender must now determine if there exists a safe avenue of retreat before he can use deadly force in self-defense. If a safe avenue of retreat does exist, he must make use of it before he may defend himself with deadly force. If he fails to make use of the safe avenue of retreat before defending himself with deadly force, he will find that he is not permitted to justify his use of deadly defensive force as self-defense.

        Note that whether a state is SYG or not is unlikely to have any affect at the point of conflict. In my experience, otherwise lawful defenders ALWAYS try to get away from a deadly fight if it is safely possible to do so. If they have not retreated, it is because they simply did not perceive an opportunity to do so under the circumstances with which the attacker presented them. And SYG only ever relieves an otherwise lawful defender of the duty to retreat, for if one is not a lawful defender one is not acting in self-defense, and if there is no self-defense there is no SYG.

        All that changes is whether the defender will later find himself stripped of the justification of self-defense because. Of course, whether a safe avenue of retreat existed such that the defender should be stripped of the justification of self-defense is ultimate a decision that will be made by others, sitting in the secure safety of a prosecutor’s office or court room, using perfect 20-20 hindsight, with out the prospects of a lethal attacker looming over them.

        SGY states make the policy decision that it is not appropriate to place this burden upon the defender. Rather, is it not the attacker who should bear the burden of retreat, if anyone is to bear such an obligation?

        –Andrew, @LawSelfDefense

          madmarten in reply to Andrew Branca. | February 18, 2014 at 1:46 pm

          Thanks for the replies. I appreciate it. I am sincerely trying to figure what self defense and SYG means. Because, apparently, I have fallen victim to some misunderstanding. I do notice in your descriptions and hypotheticals that you have perfectly clear good guys and bad guys. I wonder about grey areas and situations. I guess you say in your practice, that grey areas rarely happen. Do grey areas happen at all?
          Does a person attempting to use a self-defense argument bear any responsibility in trying to avoid escalating a situation to one in which he feels deadly force is necessary? Or is the 5 or 10 second “deadly force window” the only thing that matters? I am not talking about just starting a fight (NSS) but what about yelling and large gestures (not crimes).
          For instance in my driver A & B scenario, I tried to come with at least a plausible grey area case. You pretty much immediately dismissed and said in no way would this be self-defense. What if driver B (who followed A into the parking lot remember) took a step towards car A? How many steps does driver B get to take towards A, before driver A feels threatened enough to justifiably use deadly force? When I say driver A “had enough”, this is in his own mind that “hey this guy has a weapon and means me harm”, its not like anybody else will know.

      madmarten in reply to Andrew Branca. | February 18, 2014 at 2:54 am

      Let me flesh out your road-rage tire iron hypothetical a little.
      Ok so driver A cuts driver B off, and driver B doesn’t like and begins aggressively tailgaiting A, flashing high beams honking horns. Driver A responds by slamming on his brakes nearly causing B to hit him. Driver A pulls into a parking lot, driver B decides he is not finished yet and follows him.
      Driver B stops in spot and sits, Driver A stops a spot or two away and exits his car and approaches the car B and starts yelling raising his arms and gets real close to window. Driver A goes back to his car and gets in. Driver A opens his glovebox gets his gun and puts it in his lap. By the time Driver A looks back Driver B is standing beside his own car (car B) with tire iron. Driver A has had enough and not waiting for him to approach, shoots driver B. Now I assume there is some witness who sees most of the whole thing.
      Now in my understanding, I believed that a driver A has *much* easier self defense case in SYG state than DTR state, and not just because he had no legal to duty to retreat at the end, but because he had no legal duty to stop escalating the situation at every turn. He legally had the right to be everywhere he was and do everything he did even thought that precluded de-escalating the situations. The prosecutor will say driver A should have not escalated the situation; and then won’t the defense attorney just say that his client had the right to stand his ground?

        “Driver A stops a spot or two away and exits his car and approaches the car B and starts yelling raising his arms and gets real close to window.’

        If you can’t see that adding this element to the narrative changes it completely, I can’t help you.

        –Andrew, @LawSelfDefense

        “By the time Driver A looks back Driver B is standing beside his own car (car B) with tire iron. Driver A has had enough and not waiting for him to approach, shoots driver B.”

        How would this be self-defense under ANY US self-defense framework, SYG or not? You don’t get to shoot someone in ANY state simply because you’ve “had enough.”

        Sheesh, where do you people come from?

        –Andrew, @LawSelfDefense

          madmarten in reply to Andrew Branca. | February 18, 2014 at 3:08 pm

          Thanks for the replies. Sorry for double post of this. I don’t find edit or delete options. I appreciate it.
          I am sincerely trying to figure what self defense and SYG means. Because, apparently, I have fallen victim to some misunderstanding.

          I do notice in your descriptions and hypotheticals that you have perfectly clear good guys and bad guys. I wonder about grey areas and situations. I guess you say in your practice, that grey areas rarely happen. Do grey areas happen at all?

          Does a person attempting to use a self-defense argument bear any responsibility in trying to avoid escalating a situation to one in which he feels deadly force is necessary? Or is the 5 or 10 second “deadly force window” the only thing that matters? I am not talking about just starting a fight (NSS) but what about yelling and large gestures (not crimes).

          For instance in my driver A & B scenario, I tried to come with at least a plausible grey area case. You pretty much immediately dismissed and said in no way would this be self-defense.

          What if driver B (who followed A into the parking lot remember) took a step towards car A? How many steps does driver B get to take towards A, before driver A feels threatened enough to justifiably use deadly force? When I say driver A “had enough”, this is in his own mind that “hey this guy has a weapon and means me harm”, its not like anybody else will know.

Regarding Florida, is the § 776.013(3), Fla. Sta,(SYG), Read to the jury in their instruction every single time in a self defense case?

    No, the statute is not read to the jury. The jury instruction is read, which covers several self-defense statutes:

    3.6(f) JUSTIFIABLE USE OF DEADLY FORCE http://is.gd/y3M5Rs

    –Andrew, @LawSelfDefense

      madmarten in reply to Andrew Branca. | February 18, 2014 at 7:40 pm

      Are you saying the 776.013 is never under any circumstance read or given to jurors?

      Wait a minute isn’t 776.013 included in 3.6(f) ?

      It says at the top 3.6(f) only things warranted by evidence are given.

      So how is decided when to read it and when to not read it?
      Is there some kind of pretrial(or mid-trial) conference or declaration?

        Not sure why this would be so much of a shocker, I’m simply saying that when the jury is instructed by the court, they are read jury instructions. NOT statutes. Of COURSE not statutes. Statutes include things like the terms of punishment, which are WAY outside the purview of the jury.

        There’s a reason we have things called jury instructions. We use them to instruct the jury. Instead of reading them statues.

        Naturally, the jury instructions are based on statute. AND case law. AND limited to what falls within the jury’s fact-finding purview.

        –Andrew, @LawSelfDefense

          madmarten in reply to Andrew Branca. | February 18, 2014 at 10:50 pm

          Dude, I have never been part of a criminal proceedings, let alone in Florida. I only know what I have heard in the media, and I am sure you are skeptical of that. Of course I doubt entire pages of statutes are read, but pieces and summaries are.

          So let me try again. Are the following words read or otherwise provided for the jury to consider in every single case where justified use of deadly force is used as defense to criminal prosecution in the State of Florida:

          “If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.”

          If not every such case, then how is it determined? I believe this is true but I wanted to verify.

          I was hoping for a teaching answer, instead of an f-off answer.

          Asked and answered.

          You’re boring. I’m done with you.

          –Andrew, @LawSelfDefense

Tim Lookingbill | February 18, 2014 at 2:36 pm

With regard to Dunn not having to retreat in order to avoid BACKING out from in front of the convenience store and thus passing in front of J Davis’ supposed shotgun blasts that never happened, the time it must have taken for the boys to back out as Dunn started shooting the sides and turn the vehicle around in a direction that allowed Dunn to shoot the rear of the vehicle suggests there had to be a lengthy pause before Dunn continued shooting the rear of the SUV. Right?

I didn’t see any CGI layout of how both vehicles were parked in front of the store, so if there was a quicker get away by the SUV that made the SUV appear to drive in a pattern that put the rear of the vehicle in front of the general direction of Dunn’s hail of bullets, it would help to have some clarity on that.

    I think people think that it is the pause and second burst of gunfire, that led to the attempted murder conviction. This point was emphasized more skillfully by the prosecution.

Tim Lookingbill | February 18, 2014 at 3:15 pm

Thanks for the clarity, madmarten.

So basically overall on both Zimmerman and Dunn cases the jury got it right according to the definitions of self defense law in the state of Florida.

From all the slicing and dicing of the minutia of data on cases such as this, I find that to be a miracle. I have no idea how juries can keep track of it all.

Mr. Branca, a friend and I were debating the Dunn verdict (or lack of it in one case) and she posted an interesting hypothetical.

What if Davis survived? Would Dunn have been charged with four counts of attempted murder 2 and convicted upon all 4 charges? I ask because my understanding is that the final shots into the SUV as it was driving away is what earned him the attempted murder conviction. But would those shots, in your estimation, convinced the jury to convict him on all 4 accounts of attempted murder since he was trying to kill all 4 occupants?

In a weird twist, would Dunn have been convicted of more crimes if he had failed to kill Davis?

    It appears that the jury approached the problem from the perspective of each of the three uses of defensive force–each of the three groups of fire–individually.

    It appears that at least one juror was unconvinced that the State had met its burden to disprove self-defense beyond a reasonable doubt for the FIRST burst of fire–the three rounds that hit and killed Davis. Thus, that juror was unwilling to convict on the M1 or any lesser included charge for the shooting death of Davis.

    Assuming that to be the case, then no, it would not have mattered if Davis had survived. If a juror believes that the particular use of force was justified, then it is a total defense to any criminal charge based upon that use of force–whether it be murder, attempted murder, battery, assault, whatever.

    –Andrew, @LawSelfDefense

      madmarten in reply to Andrew Branca. | February 18, 2014 at 7:49 pm

      Except if Davis had lived to testify..

      And stated that he did not have gun. That could have made a difference.

        tom swift in reply to madmarten. | February 18, 2014 at 8:38 pm

        Hardly. Would anyone really expect Davis to testify that he had a gun, even if he did? Of course not. Whatever Davis’s testimony, jurors would either believe Dunn, not believe Dunn, or not really believe Dunn but still have reasonable doubts.

        That’s not very bright. The argument that there was never a weapon in the SUV was made repeatedly, and with force, by the three other boys. How much would Davis’s as fourth witness have added to that? Little or nothing. For you to assume that would somehow be decisive is silly.

        –Andrew, @LawSelfDefense

      Semper Why in reply to Andrew Branca. | February 18, 2014 at 9:39 pm

      MR. Branca, if I understand you properly, we’re guessing that the jury considered each volley of fire as a separate use of force. I get that the 1st & 2nd volleys are the basis for the deadlock by at least one juror. That 3rd volley was not justified in the eyes of the jury and resulted in them finding him guilty of 3 counts of attempted murder. So far, so good.

      So considering the circumstances of the 3rd volley if Davis had survived: we now have Dunn attempting to murder four teenagers, one of whom he may/may not have legally shot. But while the SUV is speeding away, Dunn is not defending himself and the jury agreed with the State on that (insert assumption disclaimer). At this point in our hypothetical, Davis will survive three attempts to kill him – two possibly justified and one not.

      The way it turned out, I can understand the State not charging Dunn with attempted murder of Davis for that 3rd volley considering that the 1st volley actually did kill him. But it sounds like your opinion is that if Davis survived the first two volleys, Dunn’s 3rd volley makes no difference.

      This contradicts a point made in a couple of my lethal force classes – namely that you do not “finish off” the bad guy once he no longer is a threat, regardless of how justified you were in shooting him in the first place. In our hypothetical, it sure seems like Dunn is attempting to murder three teenagers and attempting to finish off the 4th.

      I would be curious if this changes your assessment. Usual caveats apply, we’re all making assumptions, yada yada yada.

        Ah, I understand your point now.

        If we imagine that Davis was NOT killed in the first volley, and that he was NOT killed in any of the subsequent volleys, then you are quite right, having survived he would have been a fourth attempted murder charge (rather than a murder charge), and on the same basis as the jury convicted Dunn on the attempted murder of the other three I would expect them to have convicted him of the attempted murder of Davis.

        If the third-volley of rounds was not justified against the other three-and based on the jury verdicts we have to assume that was their conclusion–then it most likely would also not have been justified against Davis.

        I say “most likely” because there is one important distinction between Davis and the others, based on testimony in evidence. Dunn was unable to point to any particularly threatening conduct by any of the other three boys. He WAS (lying or not) able to allege specifically threatening conduct by Davis.

        It is possible that a jury could still conclude, had Davis lived, that although Dunn’s firing of the “parting shots” was not justified against the three boys who had never explicitly threatened him, it might have been justified against the one individual who he claimed DID explicitly threaten him.

        Of course, we’re deep into speculation land now, which I try to avoid.

        Incidentally, one of the jurors is to speak on Nightline tonight, just after midnight. I will be live tweeting that appearance, and posting a summary here immediately after.

        –Andrew, @LawSelfDefense

    tom swift in reply to Semper Why. | February 18, 2014 at 8:33 pm

    my understanding is that the final shots into the SUV as it was driving away is what earned him the attempted murder conviction

    There are no understandings. All of this is speculation, because the jurors ain’t talking. And they have no obligation to talk.

Wonder what you think the state needs to do to secure a conviction in the retrial, what their chances are, and if the deadlock in this case was largely due to a poor prosecution.

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