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More Politically-motivated Attacks on Self-Defense Law

More Politically-motivated Attacks on Self-Defense Law

Good luck, Florida. Do the right thing.

https://www.youtube.com/watch?v=9xHPEPOy0zY&t=149s

It’s become a standard propaganda technique of the modern racial grievance industrial complex to target self-defense law for particularly intense hate-based attacks. This is most notable in their attacks on “Stand-Your-Ground,” a term that they’ve sought to make, and with some success, synonymous with “RACIST!!!”

These efforts are not limited to “Stand-Your-Ground,” however, but rather are broadly applied to generally constrain the scope of conduct that qualifies as lawful self-defense, and thus deemed free of criminal liability.

Keep in mind, when the scope of self-defense is narrowed, that means many cases that would currently result in acquittals as acts of lawful self-defense will instead result in convictions and sentences of decades and even life in prison. It’s a big deal.

It is ironic that even as the racial grievance industrial complex seeks to narrow the scope of what qualifies as self-defense, it is black citizens who are disproportionately the targets of violent crime. It is thus black citizens who are disproportionately faced with the need to act in self-defense. It is thus black citizens who would be disproportionately increasingly likely to be convicted and imprisoned under the narrowed scope of self-defense sought than they would under the current broader scope of self-defense.

Racist, indeed, but perhaps not in the way the racial grievance industry pretends to be the case.

Now a Democrat state Senator in Florida—Oscar Braynon (in featured image) has advanced Senate Bill 636 to narrow the scope of that state’s self-defense law, with essentially three specific proposed policy changes. (The full text of SB 636 is embedded at the bottom of this post.)

(If Braynon’s name sounds familiar it may be because it was reported last year that Democrat Braynon was having an affair with fellow Florida legislator Anita Flores, a Republican.  The affair having been caught on hidden camera, both Braynon and Flores conceded to the relationship, as reported here and here. Both at the time were married with children.)

Two of the changes SB 636 proposes appear to my eye to be of no actual consequence, and thus can be characterized as little more than political theater. The third would have actual consequence, but only the consequence of reverting Florida’s self-defense immunity law to a previous failed version.

Let’s consider each of the proposed changes in turn.

1. Purports to change required belief from “reasonable” to “objective”

The first change proposed by SB 636 to Florida’s self-defense law is stated as follows:

“… revising the standard under which a person is justified in using or threatening to use non-deadly or deadly force from a person’s reasonable belief to the objective belief of a reasonably cautious and prudent person in the same circumstances …”

To clarify, the use-of-force in self-defense is currently lawful only if the defender’s belief in the need for such force is a reasonable belief; an unreasonable belief in the need to use-of-force will not support a claim of self-defense.

By proposing this change from “reasonable belief” to “objective belief of a reasonably cautious and prudent person in the same circumstances,” SB 636 suggests to an uninformed person that this represents some kind of substantive change.

To my modestly informed eye, however, it does not. “Reasonable” in this context is a legal term of art that already includes such notions as “cautious and prudent person in the same circumstance.” Indeed, that’s precisely how an act is judged to be reasonable, or not: by inquiring if a reasonable and prudent person, with the same or similar knowledge, experience, and training, in the same or similar circumstances, would have perceived the matter as did the defendant.

So, as near as I can tell as a lawyer with some expertise in use-of-force law, this proposed change in Florida law is no change at all. The outcomes under the proposed new standard would be exactly the same as the outcomes under the old existing standard because there is no substantive difference between the two standards.

That said, I’ll concede that I’ve been wrong once or twice before. To account for that possibility, I would ask Senator Braynon to answer the following question: If the proposed standard is a substantive change that would drive different outcomes from the current standard, how exactly would one expect those outcomes to differ? What are examples of use-of-force that would be lawful and result in acquittal under the current standard, but would be unlawful and result in conviction and decades or life in prison under the proposed standard?

Because if you don’t understand that, you don’t understand the proposed change at all in any meaningful sense.

2. Provides that self-defense immunity is not available to an aggressor

“… providing that immunity from prosecution is not available to an aggressor …”

This is actually the third of the proposed changes listed in SB 636 as a matter of sequence, but it shares the same defects as just described above, so I’ll cover it here.

The proposal itself is fairly self-explanatory on the surface: if a purported defender was the aggressor in a fight, he ought to be denied the benefit of self-defense immunity.

Fair enough. And utterly meaningless as a change in policy, because it simply doesn’t represent a change in policy. At all. A purported defender who is the aggressor in a fight cannot currently qualify for self-defense immunity, because an aggressor cannot justify their use of force as lawful self-defense at all.

To understand why this proposed change is pointless one must understand how self-defense immunity actually works. In effect, a self-defense immunity hearing is simply an opportunity to demonstrate to a court, pre-trial, that one’s use of force qualifies as lawful self-defense. If this can be done pre-trial, there’s no point for the expense and time of a full-blown trial, so self-defense immunity provides for extremely useful efficiency in the administration of justice.

In determining whether a defendant qualifies for self-defense immunity the hearing judge simply looks at exactly the same elements of a self-defense claim as would be argued at a trial. The conditions for self-defense immunity and for self-defense at trial are identical, not different.

Under current Florida law, indeed under the self-defense law of every state, a person who is the aggressor in a fight cannot justify that use of force as self-defense. It need hardly be stated that self-defense is intended to justify a defender from the use-of-force of an aggressor, not to justify the use-of-force of an aggressor against a defender. Accordingly, the physical aggressor cannot qualify for self-defense.

The fact that the aggressor cannot qualify for self-defense applies both at trial and at a pre-trial self-defense immunity hearing because both settings are conducting the same legal inquiry.

Because current law provides that an aggressor cannot qualify for self-defense, it necessarily provides that the aggressor cannot qualify for self-defense immunity. Thus the proposed “change” in SB 636, that self-defense immunity not be available to an aggressor, is no change at all, it is already the case that self-defense immunity is not available to an aggressor.

Again, however, perhaps I fail to understand what Senator Braynon believes he is seeking to achieve. In that case I ask the same question as above: If the proposed standard is a substantive change that would drive different outcomes from the current standard, how exactly would one expect those outcomes to differ? What are examples of an aggressor who would qualify for self-defense immunity under the current standard, but would not qualify for self-defense immunity under the proposed standard?

Because if you don’t understand that, you don’t understand the proposed change at all in any meaningful sense.

3. Change BOP on self-defense immunity to preponderance of the evidence

“ …revising the burden of proof from clear and convincing evidence to a preponderance of the evidence which the party seeking to overcome immunity from criminal prosecution under a specified provision must prove …”

The third change proposed in SB 636 is, unlike the other two, a substantive change to the law. Specifically, it proposes to change the burden of proof on the prosecution from the current standard of “by clear and convincing evidence” in order to defeat a motion for immunity to a standard of “by a preponderance of the evidence.”

This would be a genuinely substantive change in Florida self-defense immunity law, and normally I’d say it’s perfectly good fodder for public policy debate.

Here’s the problem: That debate has already happened, and been settled. It was only months ago that the Florida legislature changed the legal standard from what Braynon proposes—by a preponderance of the evidence—to the current standard of by clear and convincing evidence. By clear and convincing evidence is a higher standard of proof than by a preponderance of the evidence, and requiring the prosecution to meet this higher standard of proof makes it more difficult for them to defeat a motion for self-defense immunity.

Furthermore, the Florida legislature had good reason for making that change to a tougher burden of proof on the prosecution. Under the previous standard of a preponderance of the evidence, the granting of self-defense immunity by the Florida courts was virtually unheard of, regardless of the underlying facts of the case. The reason, one suspects, is that it was just as easy for Florida judges to push the matter up to trial rather than take the political heat that might come their way from granting immunity in a politically volatile use-of-force case.

The result was the self-defense immunity was virtually never granted, or and eventually virtually never even sought, and the entire immunity statute was thus rendered pointless—the will of the legislature in passing immunity in the first place was being thwarted by the courts.

Eventually, the legislature got sick of this situation, and that’s what led to them raising the burden the prosecution must meet to defeat a claim of self-defense immunity.

Nor Senator Braynon wants to lower that burden back to the level that has already been demonstrated to render the immunity state useless.

Were I a member of the Florida legislature who had voted for immunity in the first place, and particularly for the recent raising of the burden of proof in particular, or even just a law-abiding Florida citizen, my response would be, “Thanks, no thanks, been there, done that, have the T-shirt.”

Attacks on Self-Defense Are Mostly Political Theater, But …

I expect that this attack by Senator Braynon on Florida’s self-defense law is primarily a matter of simple political theater, rather than any substantive effort to change the law. So long as the state’s self-defense law in general, and “Stand-Your-Ground” in particular, continues to be successfully characterized as “RACIST!!!” by the racial grievance industrial complex, there’s political mileage to be gained by attacking that purportedly racist target.

Nevertheless, we can’t assume such actions to be merely political theater, and as history continues to remind us, law-abiding citizens must remain eternally vigilant in protecting our natural rights of self-defense against Progressive fascist encroachment.

Good luck, Florida. Do the right thing.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

If you enjoyed this case of the week I urge you to take a look at the Law of Self Defense Blog, the premier source for authoritative education and insight on self-defense law. There’s always free content, as well as premium content for members of the Law of Self Defense Community.

[Featured image via YouTube]

Here is the embed of SB 636:

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Comments

In case after case poor people who reacted to a crime find themselves the beneficiaries of the stand your ground law and self defense immunity in Florida. If they only realized how their leaders are betraying them.

TheOldZombie | March 3, 2019 at 12:33 pm

The worst part of this? The Republicans in Florida do a horrible job of explaining self defense laws and this allows jerks like this State Senator to play the race card to try and wreck the self defense laws of Florida.

Self defense, including Stand Your Ground, benefits everyone in the state. American blacks use self defense laws just like everyone else.

actually think item 1 is more a wolf in sheeps clothing. once change to objective the political/sjw outrage could POSSIBLY be used to determine the objective standard.
I’d watch this one.

Attacks on self defense are actually core to liberalism. If you look at liberal attitudes towards the police, toward the military, and toward legal gun owners, you find a common thread of hostility to the use of force even for what most people would consider good reasons.

It is usually unspoken that one of liberalism’s core beliefs is that good people are pacifists (although, as always, the left tends to make exceptions for themselves). This is why they reject out of hand arguments about defending home, family, community and country from bad actors. They consider the defensive act, itself, to be just more violence and, therefore, morally wrong.

They come down especially hard on “good guys with guns” because in their weird little minds, the good guys should know better than to ever resort to violence (Except, again, when defending the interests of the left).

These fights will never go away. So keep articulating the reasons why self defense is an important and good thing!

    alaskabob in reply to irv. | March 3, 2019 at 1:32 pm

    Hence “gun free” zones.

    They will permit or enable violent destabilization of countries for their own purposes or political bent. Central/South America, Africa, Southeast Asia, Ukraine, Libya…Egypt.

    Now assault and battery on all ages of people that oppose them here.

    They encourage or promote helplessness and weakness.

Rights and responsibilities. Self-defense is a diversity-neutral, human right irrespective of a person’s colorful clump of cells, age (or should be), sex, and gender.

I agree with Mr.Branca’s points in the first an third statutory changes, in the bill. Both are redundant and already covered by case law, which would not be affected by the bill.

In the case of changing the the burden of proof in an immunity hearing back to the petitioner [defendant] and from clear and reasonable evidence to a preponderance of the evidence. The argument for the change, by the Legislature. has been that the Legislature INTENDED that a person who claimed to use force in lawful self defense would be granted immunity from prosecution until such time as the state could prove the person was was NOT entitled to such a grant of immunity. However, if this was, in fact, true, then it is doubtful that the Legislature would have limited the grant of immunity to immunity from ARREST, until such time as PROBABLE CAUSE could be shown that the use of force was not lawful and failed to set forth specific rules for conducting immunity hearings, at the time such hearings were mandated. So, when the Legislature enacted the a bill establishing a hearing on a motion for immunity from prosecution due to lawful self defense, the courts treated such a hearing as any other hearing and required that the person making the motion prove that he was entitled to the relief granted by the motion by a preponderance of the evidence. Yo date, no person making such a motion has not been granted the motion upon presenting a preponderance of the evidence that his actions constituted lawful self defense.

The controversy, over that change, arose when it became clear that it would become necessary for the state to essentially prove its case twice. If the state failed to prevail, under the new standards, the defendant would be released and the state would have no recourse, just as under the old rules. If the state prevailed, then the defendant did not stand convicted, but would continue on to trial, where the state would be required to present its case all over again.

Since then, the 3rd DCA has used the SCOF’s decision in Bretherick [2015], in Love v Florida, to state that the legislature has the authority to set burden of proof and evidentiary standards in hearings on judicial motions. The SCOF has not taken up the argument that the Legislative management of the workings of judicial hearings constitutes an unconstitutional violation of the separation of powers under the Florida Constitution. So, that is still up in the air.

amatuerwrangler | March 3, 2019 at 1:31 pm

I think that one motivation for change is the immunity to civil liability provided. It hits the racial grievance industry dead (forgive the pun) in the pocketbook. It severely reduces the chances of winning the ghetto lottery.

Dude may have got himself killed by trying to rob that guy, but at least the family can get some big money out of it. Without the immunity these thugs are worth far more dead than alive.

There is no such thing as “the objective belief of a reasonably cautious and prudent person”.
Such belief is an opinion, which renders it subjective.

https://www.portlandmercury.com/BlogtownPDX/archives/2011/04/01/somber-anniversary-a-decade-since-the-police-shooting-of-jose-mejia-poot

Today’s test. Locate in the article where it mentions that the city of Portland paid out $750,000 to his family, because he was here illegally causing problems that finally got him shot. BTW, he was mentally ill.

I was watching the footage of officer Shelby in Tulsa who was recently cleared in an investigation, and my opinion is that the shootee was trying to commit suicide-by-cop in order for his family to profit from his death. There seems to be a never ending supply of these people who have value to society until they do something stupid to get themselves shot, and then suddenly they are an asset to the community worth millions of $$$. As Mr Potter put it to George Bailey, “you are worth more dead than alive.”

As a Florida resident and someone who once worked in the Florida Legislature, this bill will die. Foremost, the “Father” of Stand Your Ground, Sen. Baxley of Lake County sits on the Judiciary Committee, which will hear the bill. I doubt Baxley will allow this bill get out of committe. Also, there are no Co-Sponsors in the senate and I am curious if there is a companion bill in the more Conservative Florida House. And of course, Gov. DeSantis won’t support this bill because he wants to be president.

Thank you once again Andrew for a thorough analysis.

Race baiting is a very, very lucrative business. I can see the dollars in their eyes from here.

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