Pinellas County Sheriff Bob Gualtieri issued a statement about the shove-shoot case. He gets a lot right in this statement, but he also gets a lot wrong. In the interests of time (and because I have a full-day Law of Self Defense LEVEL 1 Class to teach today in Sacramento CA), I’ll focus on the wrong stuff in this post.

For example, he appears to believe that the legal standard for reasonableness is strictly subjective, which is not the case. One must indeed be in subjective fear, but that fear must be objectively reasonable.

He also talks at some length about his belief that the Sheriff’s office can’t substitute their judgment for that of the shooter—but, of course, they can, and they do, routinely, when they conclude that the facts differ from the claimed judgment of a suspect. And at the same time he explicitly recognizes that now that he’s passed on the case to the prosecutor’s office, so the prosecutor can decide whether to charge, the prosecutor is in the position of substituting their judgment for that of the shooter.

Also, the Sheriff’s implication that the recent change in Florida self-defense immunity law that once a person claims self-defense immunity the law places the burden on the state to disprove immunity by clear and convincing evidence, “this doesn’t happen anywhere else, where one person raises a claim and the other person has to disprove it” (I’m paraphrasing) is nonsense.

In 49 states, when a person raises self-defense as a legal defense the burden of proof shifts to the state to disprove self-defense beyond a reasonable doubt (an even higher standard of proof). The Sheriff may be correct if the discussion is limited to pre-trial immunity hearings, but a burden shift to the state is the norm in self-defense generally.

Frankly, I can see reasonable arguments for either a lawful or an unlawful shoot here. A decision not to arrest is reasonable on these facts, and a decision to arrest would have been reasonable on these facts. But the idea that the Sheriff is obviously and explicitly prohibited by law from making an arrest on these facts is nonsense.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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