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NY Times’ mindless editorial over Stand-Your-Ground law

NY Times’ mindless editorial over Stand-Your-Ground law

Florida’s problem is not “stand-your-ground,” it’s over-zealous prosecutors

I imagine we’ve all chuckled at the mindlessness which the New York Times provides opportunities to observe the Murray Gell-Mann amnesia effect in action.

From my own perspective as an expert in use-of-force law I fail to recall a single instance in which the NYT has so much as approached factual accuracy or displayed contextual understanding in a piece on self-defense laws in general or “stand-your-ground” in particular.

This morning’s editorial, “More Stand Your Ground Mischief in Florida” is no exception. What has the NYT Editorial Board all in a tizzy this time is a proposed change to Florida’s self-defense immunity law.

We covered this proposed change in detail previously here at Legal Insurrection: “Major Change Proposed for Florida Self-defense Immunity Law.”   In a nutshell, currently a person claiming self-defense immunity has the burden of proving by a preponderance of the evidence that they acted in self-defense.  The proposed modification would instead require that the State bear the burden of disproving self-defense beyond a reasonable doubt in order for self-defense immunity to be denied. Generally, these arguments would be made at a pre-trial hearing, before the trial proper itself.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

–-Andrew, @LawSelfDefense

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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Not now. Not this time.

Andrew, any chance you could get your post here published as an Op-Ed? Or does “all the news that’s fit to shite” reluctant to be disabused by the inconvenient legal facts. 😀

Excellent post

“Of course, the NYT makes no mention of this distinction, and I very much doubt they are aware of it.

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

Andrew, this seems to be a logical disjunction…or shift…from your argument about the change in the burden of proof of self-defense pre-trial to an argument about SYG.

It made me dizzy. Or perhaps “er”.

    Fair point. The NYT use of “stand-your-ground” to mean both stand-your-ground AND self-defense immunity (two entirely different things) invariably causes confusion.

    Perhaps the NYT’s “20” is referring to self-defense immunity, and not stand-your-ground.

    If I have time today I’ll go count the self-defense immunity states–maybe there are 20 of those, and if so I’ll do a correction.

    –Andrew, @LawSelfDefense

Char Char Binks | November 2, 2015 at 11:11 am

The proposed bad law seems designed more to protect a Marissa Alexander than a George Zimmerman, and made in direct response to her “plight”, although a non-politicized case would have gone against her, no matter what the burden of proof. How is it that when libs decry “gun zealots” they never seem to include “peaceful” protesters/rioters, turkey-sandwich-eating thugs, and murderous women with bad aim?

Can it still be classified as “stand your ground” when the victim was forced to the ground, and his head is repeatedly knocked on the ground?

    Milhouse in reply to n.n. | November 2, 2015 at 1:35 pm

    Yes, if the state can show that victim could have thrown off his attacker and escaped in perfect safety, but chose instead to just lie there and shoot him. In a non-SYG state, such an unlikely defendant would be convicted, while in a SYG state he would be acquitted.

I have less of a problem with the shift of the burden of proof than I do with timing.

To meet that burden, prosecutors must be provided time to prepare for a hearing on that issue, which would include time for a careful and through investigation. The law seems almost designed to preclude that.

    DaveGinOly in reply to Ragspierre. | November 3, 2015 at 1:21 am

    Shouldn’t a careful and thorough investigation precede an indictment and pre-trial hearings? It seems to me this change to the law would affect cases only after they had reached a rather mature stage.

From a legal standpoint, the proposed changes are a stellar shift in procedure.

Currently, Florida procedures treat a motion for dismissal due to immunity provided by lawful self defense just like any other pre-trial motion. It requires that the person filing the motion prove, by a preponderance of the evidence, that he is entitled to the relief granted by the motion. This, of course, makes perfect sense, as it is the way virtually every other pre-trial motion is handled.

What the changes would do, is to require the state to prove, beyond a reasonable doubt, that the petitioner is NOT entitled to immunity for self defense, by proving that lawful self defense did not exist. What this does, in essence, is to require the state to mount nearly a full trial. And, unlike at trial, if the state proves, beyond a reasonable doubt, that lawful self defense did not exist, the defendant can still go to trial and mount the same defense all over again, in the hope that he will find a sympathetic juror who will buy his argument.

In Florida, the statutes require that, once a defense of self defense has been raised, during the investigative phase, that the state provide probable cause to believe that it did not exist, prior to a person being arrested and charged. Then, that PC is vetted by a judge, to make sure that it is unlikely that lawful self defense existed. Then we have the pre-trial motion phase, where the defendant can raise the issue of lawful self defense again. And, all the defendant has to do is provide enough evidence to prove that lawful self defense probably existed, by a preponderance of the evidence. Then, if the defendant does not persevere in the motion hearing, he can present the same defense at trial, where the state now has the burden of disproving a viable claim of lawful self defense beyond a reasonable doubt. This is an incredibly liberal standard for criminal prosecution, by anyone’s standards.

But, what the firearm’s activists want is not just three bites of the apple, but to be able to eat the apple twice, as well; once in a pre-trial hearing on a motion to dismiss and again at trial.

As to the claim of prosecutorial abuse, while it is possible, it is rare, if the system works. In the Zimmerman case, the entire judicial system consciously conspired to illegally charge and try Zimmerman. No law would have helped, as the prosecutor presented woefully inadequate PC for charging Zimmerman. The judge, at the magistrates hearing, allowed the woefully inadequate charging document to stand. And the trial judge failed to grant a directed motion for acquittal when the prosecution, not only failed to prove its case, but actually proved the defense contention that lawful self defense existed, through its own witnesses. So, no change in the law would have affected this case, at all, as the actors would simply have ignored it, as they did the laws existing at the time.

Historically, Florida has proven that the stand your ground law works. It has proven that the requirement for PC that lawful self defense did not exist, before an arrest can be made or a person charged, works. It has proven that the current procedure for handling a motion for dismissal based upon immunity works. So, unless the entire criminal justice system simply ignores the existing laws, it is unlikely that a person who used deadly force in self defense will be brought to trial at all. If it not broken, then it does not need to be fixed.

    DaveGinOly in reply to Mac45. | November 3, 2015 at 1:28 am

    “So, no change in the law would have affected this case, at all, as the actors would simply have ignored it, as they did the laws existing at the time.”

    The mentioned deficiencies of the Zimmerman trial would have been, if the prosecution had prevailed, reversible error, yes? And if the proposed change to the law is adopted, and ignored, it will also provide the potential for claims of reversible error.

All good points, but the NYT is correct on the bottom line, that this is a bad proposal. Florida law is good as it is, and should not be changed.

The thing to remember is that at a pre-trial hearing the question is not whether the defendant is guilty, but whether there’s enough of a case against him to justify putting him through the trouble, expense, and indignity of a trial. At trial, of course, the prosecution must prove every element of the crime, including the lack of self-defense, beyond reasonable doubt. But that shouldn’t be necessary merely to get to trial. If the state has shown a prima facie case, and the defendant wants to avoid trial because he says it was self defense, let him prove, at least, that he’s probably telling the truth. If he can’t do that, and the prosecution honestly believes that at trial it will be able to disprove self defense beyond reasonable doubt, then the public and the victim deserve a trial.

I seem to recall that I predicted this law would not be passed as proposed back when Andrew brought this to LI a few months back.

I hold by that, and I further think it won’t live a long or happy life if it is passed. It simply shifts too much onto the prosecutors. IMNHO.

Sorry to get off track , Mr Branca , I have thoroughly enjoyed your Freddie Gray series . I hope you will do a column on the Judge’s many rulings and your thoughts on these rulings . It seems as if he is not giving the defense anything . I would also appreciate your thoughts on statements being admitted and the whether they should have been per the Maryland LEO law. Also thoughts on appeals of these rulings .

    I’ll be happy to cover the Freddie Gray related trials at length, once the prosecution actually begin releasing evidence.

    If, that is, they HAVE any evidence. 🙂

    –Andrew, @LawSelfDefense

Thanks I really enjoyed those articles that’s when I started ready LI. I think since her hubby is now running for mayor , we will see more delays, she doesn’t want any bad news before the election .

You contend that the law has an incredibly liberal standard and perhaps it does, but there is also a conservative position here, too. It seems that the State of Florida wants its citizens to use firearms or other available means to defend themselves and others and give the people a little more leeway in order to effectuate this policy. Defense situations unfold quickly, often in seconds without opportunity to think clearly, so giving a defendant more opportunity to prove his justification allows a furtherance of this policy and allows a defendant to keep his freedom where he thought he was doing the right thing. Remember, some of the charges to which this change applies carry the death penalty, life in prison or mere multiple decades in prison. Having done and won a couple of death penalty cases I am all in favor of this change to the law.

    faboutlaws in reply to faboutlaws. | November 2, 2015 at 4:45 pm

    This is in reply to Mac45.

    Milhouse in reply to faboutlaws. | November 2, 2015 at 6:06 pm

    Just because someone says it was self defense doesn’t mean it was. Most of the time they’re lying. You are giving every criminal a license to kill. If this passes every murderer will claim self defense, and if the prosecution can’t immediately prove beyond reasonable doubt that it wasn’t, they don’t even get a trial. No murder victim will ever be able to get justice. How will you like that if you, or someone close to you, are murdered? No, the law has the right balance now; don’t disturb it.

      forksdad in reply to Milhouse. | November 3, 2015 at 1:04 pm

      How many unsolved murders are there? It has nothing to do with the law and everything to do with the community in which the murders take place.

      Look at Chicago what is the clearance rate? 5%? What is it in Florida in urban areas? Nationally that sits at a 40% uncleared lumping places like where I live where every murderer is known even if not prosecuted (we just deport them here) thus cleared to Chicago where nothings cleared.

      Right now it has nothing to do with the law the same law in one county leads to a clearance rate in the high double digits and in another in low single digits. It is the communities. If A community wants the laws enforced and criminals caught they will be caught if not, not. And if they have racial animosity and hate the enforcement of laws we’ll get the Zimmerman crap.

      Reasonable men can live under nearly any fair system. Communities that hate the police and law enforcement will not.

I’m so proud of Marion Hammer. She needs a statue in every state in the country.

The fact that the NYT still exists leads me to believe that many folks are keeping birds.

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

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

You know, this claim from the NYT is completely asinine. The only reason why Florida has this reputation as the “Gunshine State” is because every time Florida loosens their gun laws, papers like the NYT proclaim that there’s going to be blood in the streets, and that Florida will be known as the “Gunshine State”, yada yada yada.

The thing is, this flowing of blood never happens, and I sincerely doubt anyone besides the editorial boards of the likes of NYT, and organizations like CSGV and the Brady Campaign, even think of Florida as the Gunshine State.

Indeed, I suspect that the only time even these hoplophobic organizations think of Florida as “the Gunshine State” is when they are complaining about Florida’s loosened gun laws.