CNN Mangles “Stand-Your-Ground” Law Yet Again
CNN stands its ground with inaccurate reporting on the law of self-defense.
When I tell you that you must assume that everything the news media has to say about self-defense law and events is 100% wrong until proven otherwise, this is why: CNN: “What you need to know about ‘stand your ground’ laws”.
The errors on “Stand-Your-Ground” in particular and self-defense law in general, whether these errors are borne of ignorance or malice, are almost too numerous to count. But let us make the effort, shall we?
Cases of self-defense aren’t always simple — especially in states with a “stand your ground” law.
Actually, cases of self-defense are simpler in states with a “stand your ground” law, all other things being equal, because in those SYG states self-defense must be evaluated on only four elements–innocence, imminence, proportionality, and reasonableness–rather than five elements–the addition of the element of avoidance.
Although critics say Drejka’s use of deadly force was uncalled for, the Pinellas County sheriff declined to arrest him, citing the state’s “stand your ground” law, which gave him immunity. The decision sparked outcry and calls for reform.
Oh, I see: “Although critics say …” Well that’s a convincing anonymous argument.
Also, “stand-your-ground” is not “self-defense immunity.” Indeed, these are not only entirely distinct legal doctrines, they’re found in entirely distinct Florida statutes: SYG in §776.013 and self-defense immunity in §776.032.
Then CNN helpfully supplies it’s own demented definition of what it thinks “stand-your-ground” law is:
Generally, “stand your ground” laws allow people to respond to threats or force without fear of criminal prosecution.
There is no universe in which that is a true statement. There is always a risk of criminal prosecution if you “respond to threats or force” with defensive conduct. That risk may be great or it may be slight, but it is never zero.
Most self-defense laws state that a person under threat of physical injury has a “duty to retreat.” If after retreating the threat continues, the person may respond with force.
This is an abject untruth. A large majority of about 36 states are effectively “stand-your-ground” states in that they do not impose a legal duty to retreat before acting in self-defense.
Indeed, only a small minority of about 14 states impose a legal duty to retreat before using force in self-defense, and most of those impose that duty only in the context of the use of deadly defensive force. Fewer than a handful of states impose a legal duty to retreat before non-deadly defensive force may be used.
The article then includes several quotes from Mark O’Mara, who was co-counsel for George Zimmerman, and not surprisingly O’Mara’s statements on the law are completely accurate, which I’ll skip over for our purposes. None of O’Mara’s statements make CNN any smarter, also not surprisingly.
CNN then again mistakes the prevalence of “stand-your-ground” laws across the 50 states. Even more remarkably, they seem to not know that every single state provides “some form of legal protection in cases of self-defense,” to wit, if your use of force was in fact lawful self-defense you have zero legal liability for that use of force.
While most states provide some form of legal protection in cases of self-defense, 25 have enacted “stand your ground” laws, according to the National Conference of State Legislatures (NCSL).
Then the article gratuitously suggests that “Stand-Your-Ground” is rooted in racism:
The laws in at least 10 of these states, mostly in the South, literally say that you can “stand [your] ground.”
“Mostly in the south”? Yeah–so, that “southern” “deep-red” state California, the one in which Hillary beat Trump by a full 30% of the vote? Yeah, well, um … California is one of the most vigorous “stand-your-ground” states in the country. Quoting now from California jury instruction CALCRIM 505:
A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ ) has passed. This is so even if safety could have been achieved by retreating.
How about Washington state, where Hillary beat Trump by ~14% of the popular vote? Stand-your-ground state. Oregon, where Hillary beat Trump by ~10%? Stand-your-ground state. Nevada, won by Hillary? Stand-your-ground state. New Hampshire, won by Hillary? Stand-your-ground state. Maine, won by Hillary? Stand-your-ground state. I could go on, but I’ll soon run out of states won by Hillary (thank God). And note that none of those states cited are “in the south.”
CNN then suggests that there’s something substantively unusual about Florida self-defense law:
[Florida] passed its “stand your ground” law in 2005, allowing people to meet “force with force” if they believe they’re under threat of being harmed.
Every state allows people to meet “force with force” if they reasonably believe they are under threat of being harmed, and meet the other conditions of self-defense. No state, including Florida, allows people to use defensive force if they subjectively but unreasonably believe they are under threat of being harmed (the best that can be hoped for in such a case is the mitigation of murder to manslaughter).
The article then provides several more quotes to Mark O’Mara, in which he makes correct statements about Florida self-defense law, but which the journalist incorrectly characterizes all of these characteristics as aspects of “stand-your-ground.”
Of all the states with “stand your ground laws,” Florida’s is “probably the strongest at this point,” O’Mara said, for three reasons.
I would agree that Florida self-defense law generally, one facet of which is “stand-your-ground” is probably the strongest in the country.
First is the fact the state’s law says a person has “no duty to retreat.”
Having “no duty to retreat” is indeed the very definition of “stand-your-ground,” and indeed that is the entirety of the definition of “stand-your-ground.”
Second: the state’s law provides immunity from criminal prosecution and civil actions, O’Mara said, “which not all other ‘stand your ground’ statutes do.”
This is self-defense immunity, not “stand-your-ground,” as already explained above. Two entirely distinct legal doctrines, two entirely distinct statutes.
The final reason, O’Mara said, can be attributed to a recent change in the law, which shifts the burden onto the state to prove that a shooter did not act in self-defense and is therefore not entitled to “stand your ground” immunities.
This is a facet of self-defense immunity, and has nothing to do with “stand-your-ground.”
The CNN journalist then makes the following statement:
Previously, the shooter used “stand your ground” as a defense, and had to prove she or he feared further bodily harm. But no longer.
This is a bizarre mangling of Florida self-defense law, as it again misstates “stand-your-ground” and also conflates two distinct facets.
First, “stand-your-ground” is not a legal defense, it merely modifies the legal defense of self-defense by waiving the element of avoidance. There is no such thing as raising the legal defense of “stand-your-ground.” That’s a legally non-sensical statement. But let’s set that aside and get to the substantive mangling.
Second, the sentence suggests that someone in Florida can claim self-defense for a use of force even when they did not “fear further bodily harm.” This is untrue. Every state, including Florida, requires a reasonable fear of imminent future harm in order for a use of purportedly defensive force to be deemed lawful.
Third, the sentence references that “Previously, the shooter … had to prove … But no longer.” This is referencing the burden of proof for a claim of self-defense. It is true that previously a defendant claiming self-defense immunity had the burden of proof on that claim, and that last year the Florida legislature shifted that burden of proof to the prosecutor.
Unstated, however, is that a shift of the burden of proof on self-defense to the prosecution is perfectly normal in American law–49 of 50 states require that at trial it is the burden of the prosecution to disprove self-defense beyond a reasonable doubt (the sole exception is Ohio).
CNN then supports their own mischaracterization of Florida law with a quote from Pinellas County Sheriff Bob Gualtieri, who also mischaracterizes Florida law. (Thanks for nothing, Sheriff.)
“Nowhere else is there anything like this in criminal law where somebody asserts something and the burden then shifts to the other person,” Pinellas County Sheriff Bob Gualtieri said in a press conference. “That’s a very heavy standard and it puts the burden on the state.”
Naturally, CNN can’t complete the piece without also mischaracterizing the George Zimmerman trial:
Zimmerman defied an order to not approach the teen.
As anyone who actually watched the trial would know, and which I’ve documented at length, including winning a $100 bet with (then CNN legal analyst) Sonny Hostin on this issue, who to this day refuses to make good on her lost wager, Zimmerman never defied any police order in any way. Indeed the police dispatcher who was on the phone with Zimmerman testified at trial that he never gave Zimmerman any order whatever. For those interested in the truth instead of CNN-propagated myth, look here:
Zimmerman Trial Myth Busters: Did Zimmerman disobey police orders to stay in car? A: No.
and here:
Twitter-Proved: CNN Legal Analyst Sunny Hostin’s Wager is PAST DUE
After this point the CNN piece degrades into pseudo-political world salad, and is not worth the effort to further fisk.
CNN claims to be “The Most Trusted Name in News.” Given the journalistic garbage they produce, as exemplified by their article on “stand-your-ground” fisked above, is it any wonder that their ratings are experiencing a plummeting collapse?
Ratings Crisis: CNN Suffers Viewership Collapse of Nearly 30 Percent
Now I’ll have to ask you to excuse me so I can bleach that piece of CNN trash off my computer screen.
Oofah.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Comments
Why does anyone bothers with cnn as a “news” sources anymore? If cnn were taken out of airports they would go bankrupt.
It seems one could accurately describe CNN as “Fake News.”
I wonder if they ever feel embarrassed.
Liberals have no shame
Andrew,
1 – Great write up
2 – CNN is below you
3 – Keep educating us
Best
Actually in most states lethal force is only justified when: 1) The perpetrator communicates an intent to impart seriously bodily injury or death, 2 The perpetrator has the ability to impart serious bodily injury or death, and 3. The threat of such is proximate.
Stand your ground or not, when the threat no longer exists, lethal force is no longer justified. That is why you can’t shoot a fleeing assailant, shoot a burglar outside your home, or put an “insurance” round into a downed assailant.
So in this incident, when the man attacked all three criteria were satisfied for the use of lethal force. But when the UNARMED assailant retreated at gunpoint and no longer offered violence, the threat was at least temporarily removed. With the threat stopped, in most states the use of lethal force is no longer justified. This guy got off easy.
In the screenshot of the surveillance video shown above, it is evident that the attacker could, in a split second, kick the gun from the man’s hands. He had already demonstrated quite clearly that he was sneaky… he was still a threat.
Paul, every human being is a threat. However, in the state of Florida, in order to use deadly force lawfully, in self defense, one has to REASONABLY believe that an attack is imminent AND, that said attack will likely result in death of great bodily harm or is acting to stop or prevent the commission ona forcible felon.
I have explained this case till I am blue in the face, but i will do it one more time.
1) McGlockton’s attack, a shove, did not rise to the recognized level of force necessary for a charge of aggravated battery, nor was it a robbery. So, no forcible felony.
2) Once Drejka was on the ground, McGlockton did not continue the attack. In fact, when confronted with a drawn pistol, McGlockton backed off [i.e. retreated]. So, there was no evidence to suggest, to a reasonable man, that an attack was imminent.
3) McGlockton was not visible armed, with a deadly weapon. So, in order to harm Drejka, he would have had to traverse the distance between the two men, before he could have injured him in any way.
4), Finally, even if McGlockton made an threatening movement toward, Drejka, it is arguable that there was not a reasonable likelihood that Drejka would have suffered great bodily injury or death from McGlockton’s actions. However, it is usually assumed that a person, who attacks in the face of a drawn and pointed pistol, is intent upon inflicting great bodily harm or death. Even if Drejka was acting in self defense, something which is not clear here, it is even more unclear that he JUSTIFIABLY used deadly force in self defense.
This is Drejka’s problem. This was not a classic use of deadly force in self defense. In fact, the delay between pointing the pistol at McGlockton, his backing away and stopping and the further delay before Drejka actually fired, makes it look as though the shot may have been a conscious decision, rather than a reflex action to a perceived threat. What we have is a homicide to which the perpetrator is claiming that he used deadly force in lawful self defense. So, what has to be decided is whether the situation supports the justifiable use of deadly force in self defense.
It has nothing to do with Stand Your Ground, as Mr. Branca pointed out. The correct ataute is 776.012(2), Use or threatened use of force in defense of person.
In fact, when confronted with a drawn pistol, McGlockton backed off [i.e. retreated].
You persist in equating “back off” with “retreated”. If you think that, then no wonder you find your argument convincing.
Those who don’t make that mistake did indeed see McGlockton retreat … i.e., leave the scene of the altercation … after he was shot. A second shot, fired during McGlockton’s retreat, could not be called defense. But that is irrelevant, since there was no second shot.
“verb (used without object)
to withdraw, retire, or draw back, especially for shelter or seclusion.” – Dictionary.com
“back away
verb. move away backwards
back out
backpedal
crawfish
pull back
retreat
withdraw” – Thesaurus.com
Here is the definition and synonyms for retreat. As you can see, backing away would be synonymous with retreating. But, you are splitting hairs here.
The facts are that McGlockton backed away from Drejka. He made no movement which would indicate any intention on his part to launch an imminent attack. And, he had no distance weapon in hand. In fact, he had NO weapon in hand. In order for Drejka to shoot McGlockton there had to be some evidence which would lead a reasonable man to believe that an attack which would would likely result in death or bodily harm was IMMINENT. Such a reasonable belief simply did not exist when Drejka fired.
Two words: Tueller Drill
Although the Tueller drill posits the defender drawing from a holster, it also posits the attacker coming from 21 feet away. At close range, even a drawn gun only gives you even odds of getting off a shot in the event of a sudden attack (the attacker always has an advantage – see the “OODA loop”). The attacker in this case stepped back. There’s a difference between retreating (to a distance from which an attack is impossible) and merely stepping back (and remaining within a range from which another attack can be launched). The attacker did not vacate himself from within a space in which he presented a threat to a downed (and therefore more vulnerable) and immobile defender.
And I’ll explain it to you again. That is a fighting stance. He is not retreating and he is well within range for another sneak attack. A kick to the face is lethal force. Live like a thug, die like a thug. Let’s see what a jury says.
I don’t know if it was a fighting stance, but it surely wasn’t a retreating stance.
Feet shoulder-width apart, balanced, weight slightly forward on the balls of his feet, shoulders squared. His hands aren’t up, but he is in very fine position for an attack with his feet.
He could close that gap and disarm him in the blink of an eye.
Whether he was in a “fighting stance” or not is irrelevant. It is not lawful to shoot someone simply because they are in a “fighting stance”. Some reasonable evidence has to exist that an attack is IMMINENT. and, then the threat of likely death or great bodily harm has to be present BEFORE you can pull the trigger. As to being able to cover the distance between himself and Drejka in the blink of an eye, Drejka can fire in the blink of an eye, as well.
What you are advocating stands a very good chance of seeing you in prison for a very long time.
1. The shove to the pavement was unprovoked and violent, and had a high risk of causing GBI.
2. A step or two back, while still facing Drejka, was not a retreat. His GF ran, his buddy ran. Why didn’t McG?
3. McG was a proven threat, and it would have taken him the blink of an eye to cross that distance.
4. If you shove me violently to the pavement, and you don’t want to get shot afterwards, you better turn tail and run. Don’t just step back, watch, and wait. Consider yourself warned.
Your arguments are worthless.
1) The attack was apparently over, when Drejka drew his weapon. If he had not suffered a brain injury in the initial fall, then he was not likely to suffer one while sitting on the ground. and, there was little chance of a follow on attack, when McGlockton stepped back. As to McGlockton shoving Drejka TO THE GROUND, this is inaccurate. McGlockton shoved Drejka backwards, rather forcefully and Drejka fell to the ground. He was not bodily THROWN to the ground.
2) Sorry, but backing off, moving backward, etc, constitutes retreat in the dictionary. As to why McGlockton did not run away, perhaps he assumed that Drejka knew the law and would not shoot him after disengaged. Perhpas he never intended to continue attacking Drejka, but only wanted to get him away from his {McGlockton’s} girlfriend, with whom Drejka was arguing, loudly.
3} “Proven threat” or not. McGlockton made no attempt to cross that distance to Drejka. And, as far as threats go, drejka was the far greater one with his draw and leveled pistol.
4) I’m sorry, but you are not allowed to execute people who shove you, in this country. Not even LEOs, who usually have much greater latitude in the use of deadly force rarely get away with shooting an unarmed man standing still. But, you do what you feel you have to do. A court will likely decide if it was legal or not.
First of all, the attacker did not retreat as in ‘end the initial attack or first fight’, but rather stood his ground and we’ll find out that there was a verbal threat as the gun came into view (there was a bystander present and his testimony I am sure had much to do with the outcome to not charge the shooter).
Secondly, the shooters mindset is what is the essential element here, for in his mind, already blindsided and violently shoved to the pavement, being almost 50 years of age, already injured (took him almost a minute to get up and even then he was very unstable) and still be verbally attacked AND the attacker did NOT in any way show any ‘giving up’ nor any please don’t shoot activity, the shooter “Reasonably” believed round two was imminent, being within 4-5 feet seemingly unfazed by the gun.
The verbal exchange is what determined the outcome in this case, but it isn’t even needed and only helps to justify the shooter’s actions to save himself from grave bodily harm or injury.
AND does anyone know extent of the shooters injuries, which I suspect was spine and neck related similar to whiplash. Which if this is the case, a wounded victim has every right to use lethal force being incapacitated and vulnerable.
Anyone defending this attackers as if he’s the victim here, is willfully blind. The element of reasonableness and proportionality given the size disparity, age disparity, and less than one second in response time, makes this a legal shoot.
Mac45 is here just to collect down votes. 🙂
The aggressor here wasn’t shot “while retreating.”
He was shot after taking a step or two back after his initial vicious assault, and then remaining squared up to the Drejka and sufficiently proximate to continue his attack.
There’s a difference.
Had McGlockton been shot in the back while retreating, self-defense would clearly be off the table. But those are not the facts of this case.
–Andrew
http://www.lawofselfdefense.com/patreon
Another attack seemed imminent. The shooter was in fear, alarmed from the impact, thought shooting may be his last chance.
One thing that seems to be frequently ignored is that Drejka was on the ground, not standing; and was therefore himself unable to retreat or otherwise defend himself from a renewed attack by an individual who was clearly still in range to do so. That had to play into his mental state when he pulled the trigger.
Snipersix, and others, may I respectfully recommend that you sign-up for access to Branca’s educational materials. You can do that at http://www.lawofselfdefense.com. Doing that will educate you, and others in this thread, just how wrong you are as to the rules of engagement for the private citizen use of force, especially in the context of deadly force.
It seems obvious to me: these people (so-called “journalists” and those employed by CNN chief among them) are trying to co-opt “stand your ground” as a negative term, a triggering “buzzword.” Reality and law have no place in the Court of Public Opinion which is the domain that these people seek to own.
Indeed.
–Andrew
http://www.lawofselfdefense.com/patreon
I confess, I commented before watching the video. When I clicked on the video the first thing I saw was “Cuomo’s Court…” At that point I decided my comment was probably more accurate by having NOT watched the video. That’s sad.
Yep; better informed by having not watched CNN.
Guess who is now representing the MacGlockton family? none other then our friend Crump.
Racist ambulance chasing Chump.
I prefer to call him a hearse chaser.
Yet Crump could in a perverse way perform a public service by naming CNN as a co-defendant in a lawsuit the next time some trigger happy yahoo shoots somebody because “I saw on the news that it was OK to shoot any time I was scared.”
I’m surprised CNN did not claim that the shooter in the screenshot cannot claim a “Stand Your Ground” defense because he was clearly not standing when he shot his attacker.
Just a hopeful thought. How active is Antifa in Florida? Maybe some idiot in there can him himself justifiably shot.
What prompted this comment is that I am looking at other sites and many seem to be pushing the idea that MacGlockton was completely innocent.
You think people would learn.
I’ve seen that, online and on TV and radio. They’re trying to normalize the idea that the shove was simply in defense of a violently racist tirade his woman and children were subjected to, that after the shove he retreated and was just standing there minding his own business, totally unrelated to the violent battery he just committed, when Drejka shot him just for being black even though he dindu nuffin.
By their lights, “words are violence,” and can therefore be met with physical violence, and rightfully so. If that’s what the attacker was thinking, then he learned a lesson about violence that he will, fortunately or unfortunately, never benefit from.
Sooner or later, it is inevitable that an Antifa thug will receive lawful justice.
Demonstrating complete ignorance of anything to do with guns is virtue signaling. Any reporter who started talking to his colleagues about calibers, ballistics, types of firearms could just as soon start talking about molesting children. They would never trust him again.
I remember when one blond boobed talking head reporterette referred to a 38 millimeter hand gun. Boom!
They revel in their ignorance.
Her bobs were blond? Tjat paints quite a picture.
Shoot I wanted to say I meant boos not bobs, and wound up downvoting myself.
They are too stupid to revel in their ignorance. No revel. Just clueless and ignorant.
Oh my a tasteless, but poignant comment I just saw.
What if MacGlockton had niot died but had been paralysed, and had to rely on handicap parking spaces?
Sorry to go way off topic, but I thought this was worth sharing.
You sir, owe me one laptop screen cleaning and half a can of diet coke! At least the attractive woman next to me in the mochahut didn’t ask what was so funny.
Depends on the paralysis. As long as McGlockton could still knock unsuspecting people to the ground, he should be able to function normally.
Double tap, first into groin, kick raises the gun, second the gut. Does anyone make bullets with mercury in the lead?
Since the shots are rapid fire, would a double tap response get a pass on the second shot?
We all benefit when thugs leave the scene in a body bag. Society saves a great deal of money dealing with them.
As usual, we are treated to incisive analysis from Mr. Branca, who once again takes on the utterly thankless task of correcting Leftist ignorance, intellectual laziness and rank biased sermonizing vis-a-vis the laws of self-defense. But, since when did disseminating facts — as opposed to propaganda in furtherance of the Leftist agenda — ever matter to the Left?
“…whether these errors are borne of ignorance or malice…”
Given that SYG is a simple concept that isn’t hard to grasp, they’ve been corrected countless times and still insist on saying the same thing for decades, their “errors” always cut one way, I have to conclude they are deliberately lying.
And it would not be the first time CNN was has been caught in demonstrable, verifiable lies.
“Actually, cases of self-defense are simpler in states with a “stand your ground” law, all other things being equal, because in those SYG states self-defense must be evaluated on only four elements–innocence, imminence, proportionality, and reasonableness–rather than five elements–the addition of the element of avoidance.”
It would benice if the author shared the fouth element?
Fire.
innocence
imminence
proportionality
reasonableness
(avoidance)
When someone blathers about “Stand Your Ground” laws being some kind of racist conservative thing, I like to blow their mind by informing them that in 2004, Illinois strengthened their stand your ground law, passing almost unanimously with a Democrat-controlled House, a Democrat-controlled Senate, and signed into law by a Democrat Governor — and that one of the co-sponsors of that bill was an Illinois state senator named Barack Obama.
I guess that proves they’re racist, but not conservative.
Does CNN ever get anything right? I don’t watch them, so I cannot be sure, but from the feedback I get, I think the answer is that they do not. They’re nothing but an organization that is anti-Trump, and anti-everything that decent, honest, hard-working people stand for.
This morning NPR had a sympathetic review of Rest in Power: The Trayvon Martin Story, complete with misinformation about SYG and other laws, misstatements of the facts of the case, and all the usual SJW and BLM nonsense.
at some point the mistakes are intentional
And yet they wonder why people don’t believe them. I had a Left totally go off on me after I asked if the NYT he was still reading had any lies in it, since after the election they made a statement that they were going to stop lying, which itself, was a lie. He insisted it was a great paper that always tells the truth.
“Mistakes” would fall equally on one side or the other, and not always on the left side.
“Once is happenstance, twice is circumstance, three times is enemy action.”
Auric Goldfinger
(from the novel, not the film)
In Florida the laws about firearms have a perverse twist in them.
If a burglar comes toward my house and I pull out a firearm, because I am threatened and scared and he runs away and I don’t shoot at the threat, he can file a charge of “brandishing a weapon” and I will get arrested, go to jail, have my firearms confiscated, and lose my concealed weapons license.
On the other hand, if a burglar comes toward my house and I pull out a firearm, because I am threatened and scared and I have to shoot him because I don’t want to charged with “brandishing a weapon”. That essentially makes the “brandishing a weapon” law a “death sentence without trial for criminals law”.
Would I, personally, react any differently without the “brandishing a weapon” law? Not really, because if someone is a threat to me or my family, they are not going to get any warning, once I determine they are a threat.
I’ve never understood the logic behind charging someone with “brandishing” when the only other option was shooting (and possibly killing) someone. You’re doing your attacker a favor by just scaring him. And what if you draw your weapon not to shoot, but to use it as a cudgel (less than lethal force)? Certainly there are weapons (nightsticks, for instance) that can be employed with non-lethal or lethal techniques. Why not a handgun?
http://www.foxnews.com/us/2018/08/07/florida-sheriff-blasts-al-sharpton-over-rally-go-back-to-new-york-mind-your-own-business.html
Well, Sharpton has weighed in, and his record is 0 for 100, so I’d say Drekja is completely off the hook now.