Florida’s Stand Your Ground Law, Again


Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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32 Responses

  1. Will H. says:

    That whole thing is sick.
    The manner in which laws are applied so unevenly makes no sense at all.
    I’m wondering if there was something else to it, some other piece of important information, that isn’t on that site.
    It’s crazy.Report

  2. greginak says:

    I really wonder if there is more to the story then that. It doesn’t seem like there even needs to be a SYG law in her case to justify her defending herself. Then again firing a warning shot is stupid, I’ll bet she wasn’t trained to do that. This could simply be a case of a law not being applied equally.

    I think SYG laws are a bad idea. People should have to try to avoid a potentially deadly situation. SYG laws seem to offer little incentive  to avoid trouble. Defending yourself is all good but but violence should still be the last resort and avoided if at all possible.Report

    • I’m with Greg. I’m not sure SYG is really necessary for a locked-in-a-garage-with-a-madman type scenario, or, at least, it shouldn’t be. Even with no SG laws, self defense is still legal.

      But, also like Greg, I’m a bit skeptical that we have all the facts. If what the woman writes is absolutely true, then I’m inclined to believe the whole thing is quite unfair (though I’m not going to pass judgement on the advisability of firing a warning shot at a wall – maybe that is a criminally stupid thing to do).Report

      • DensityDuck in reply to Jonathan McLeod says:

        You were always allowed to defend yourself with deadly force if the situation warranted.

        What Florida 776.013 (what the “Stand Your Ground Law” created) says is that if you did that and the police don’t have positive information that you were wrong, then they can’t arrest you until they’ve conducted an investigation.Report

        • Mad Rocket Scientist in reply to DensityDuck says:

          This is critical, because in a lot of instances, police would do just that (arrest you, then sort it out later), which left a lot of victims who were justified in using deadly force suffering the effects of unjust incarceration.

          Ideally, the police should NEVER arrest a person without evidence of wrong doing.  As it is they tend to arrest now & let the lawyers sort it out, and to hell with the damage done to the innocent.Report

  3. Jason Kuznicki says:

    I’ll repeat what I said with the Martin affair:  This looks horrible, but we don’t have all the facts.

    Local news reporting is almost worthless.  Hearing only one side of a story is even worse.  In the Martin case, I was shocked that, at first, there weren’t any charges filed.  Filing charges is only appropriate when someone got shot to death, even if the killing turns out to be self-defense. Stand Your Ground doesn’t say “there won’t ever be a trial”; it says instead: “at trial, here is one legitimate defense.”

    I’m happy that there will be a trial for Zimmerman, because now the legal system is going to sort things out, or at least try to.  I think I’ve been vindicated in my initial skepticism about the incident, in that many important facts have since come to light.

    As such, I have no opinion on this one, except to let the justice system go to work.Report

    • Colors reversed.  Dunno if it got through the news filter.Report

    • DensityDuck in reply to Jason Kuznicki says:

      “Stand Your Ground doesn’t say “there won’t ever be a trial”…”

      Actually that’s exactly what it says–there won’t be a trial, not without a police investigation first, and you don’t get arrested until after an investigation finds probable cause that your use of deadly force was unlawful. See Florida 776.032.

      If anything, Stand Your Ground won’t actually be an issue in a trial at all, because under its provisions there wouldn’t be a trial unless there was solid evidence that it didn’t apply!Report

        • DensityDuck in reply to Jason Kuznicki says:

          RTFM.  776.032: “A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.”

          That’s not “legitimate defense at a trial”, that is “there won’t be a trial”.

          ” Florida law also requires probable cause for arresting a suspect.”

          Yes, and the point of 776.032 is that “you killed somebody with a gun” is no longer the sole determinant of probable cause.Report

          • Actually, you’re both right, as I understand.  Basically, Zimmerman gets a chance to prove his defense by a “preponderance of the evidence” standard at a special hearing before trial to be decided by the judge alone.  If he succeeds, then there is no trial, and in fact his arrest would have technically been wrongful (though I rather doubt it would have been compensable).  If he fails, then he still gets to raise the defense at trial, where he can still get an acquittal if the defense demonstrates a reasonable doubt on his guilt.Report

            • Sounds right, MarkT.  One objection [from a prosecutor] was that it would be unethical for any prosecutor to take the case in front of a jury unless [s]he believed that he was guilty beyond a reasonable doubt, IOW that otherwise the prosecutor would be attempting to fool the jury, asking them to come to a belief in good faith that the prosecutor herself did not hold.

              Then again, I’m not sure that’s the majority view.

              From the comments @


              “If the D.A. only thought there was probable cause, and not proof beyond a reasonable doubt, then it was wrong to go forward with the prosecution: There might not be any *ethical* rule that says that a lawyer should not prosecute a case in which the lawyer is convinced that the defendant is not guilty, but it’s unconstitutional: a denial of due process. One should not be urging a jury to make findings that you don’t think the evidence supports, when you represent the state and the jury’s verdict will result in such a radical restriction on liberty.”

              See also

              Wilson on Prosecutorial Ethics: What If The Defendant Seems Innocent But The Boss Says Convict?Report

              • DavidTC in reply to Tom Van Dyke says:

                I just have to wonder in what universe we thought we needed a law that says ‘Under some circumstances, we need to make sure that people standing over other people with a smoking gun cannot be arrested.’. I just find the entire concept of that baffling. If I shot someone in self defense, I’d sorta expect to be arrested if I didn’t have any witnesses or whatever, and I wouldn’t run around whining that I need a law saying I can’t be.

                I mean, are people wandering around shooting so many people in self-defense that the police locking them up until they post bail is interfering with their jobs? (Or even interfering with their ‘shooting people in self-defense’ hobby!)

                What the hell is this law attempting to solve?

                And why is it for the most dangerous crime, and only for that?

                I mean, there are plenty of affirmative defenses to crimes. Perhaps I am speeding because I am having a medical emergency and must get to the hospital, which is an affirmative defense to speeding. And any delay could kill me. Shouldn’t the police be barred from detaining me (via pulling me over) until they demonstrate that this is not true? It’s a lesser crime, it’s more harmful to detain me than it would be to detain someone after a shooting, etc, etc. By any objective standard, surely we should have those sorts of laws before Stand Your Ground.Report

              • Will H. in reply to DavidTC says:

                Florida is a bit different in the way that pre-trial detainees are handled (unless they’ve changed it).
                Most often, if a person is unable to make bail, they will be released on a signature bond.
                The state constitution gives a person a right to make bail.Report

              • DensityDuck in reply to DavidTC says:

                ” If I shot someone in self defense, I’d sorta expect to be arrested if I didn’t have any witnesses or whatever, and I wouldn’t run around whining that I need a law saying I can’t be.”

                Just like if I were detained for some traffic-law violation, I’d sorta expect to be arrested if I didn’t have any witnesses or whatever.

                And if I were walking along the street and a cop saw me, I’d sorta expect to be arrested if I didn’t have any witnesses or whatever.

                And if I were holding a video camera in a public place, I’d sorta expect to be arrested if I didn’t have any witnesses or whatever.

                I mean, it’s always incumbent on me to prove that I’m not committing any crimes and haven’t lately, right?Report

              • DavidTC in reply to DensityDuck says:

                I mean, it’s always incumbent on me to prove that I’m not committing any crimes and haven’t lately, right?

                Uh, no.

                But when you’ve committed something that would otherwise be a criminal action and you have an  affirmative defense, it is incumbent on you to prove that defense.

                Innocent until proven guilty is not how it works with affirmative defenses. If the police can prove you did X, which is normally a crime, it is now your job to prove that one of the affirmative defenses apply. That is, in fact, how ‘affirmative defenses’ are supposed to work.

                It is not the job to the prosecutor to bring up all affirmative defenses and show how they don’t apply, because pretty much every crime in the US, up to an including murder, has an infinite number of affirmative defense of the sort ‘I did it to stop a greater crime’.  (That is where the concept self-defense comes from, although that’s now been explicitly codified.)

                You can, for the classic example, drive under the influence if you have been drugged by your kidnapper-to-be and need to flee them. And if you are lost in a blizzard and freezing to death and come across an empty cabin, it is legal to break in and ride out the storm.

                Those are affirmative defenses. You admit you committed the actions that were outlawed, but you assert, in court, a justification that makes them legal. You are innocent until the state proves you  guilty of the act, but if you did the act, you have no affirmative defense unless you prove it. The state proves you broke into the cabin, you then prove you had to do it or freeze to death.

                And, of course, the cops have leeway here, as they always do when making the case. If they can see the blizzard, they’ll probably just nod at your explanation and let you go without arrest. But never in our stupidest fantasies would we make it illegal for cops to arrest people who just claim to have some justification, to make the police disprove the justification first.

                Except, apparently, when it comes to causing death.Report

              • DensityDuck in reply to DavidTC says:

                “Innocent until proven guilty is not how it works with affirmative defenses. ”

                Claiming that you weren’t using your video camera to record images of children for pornographic purposes is an affirmative defense.Report

              • DavidTC in reply to DavidTC says:

                For some reason I can’t reply below, so I will reply here:

                Claiming that you weren’t using your video camera to record images of children for pornographic purposes is an affirmative defense.

                I don’t even know how to respond to this, it’s so stupid. There is not any sort of ‘affirmative defense’ in there at all. Either you were breaking the law by recording child porn, and the courts have to prove that (And the police should not arrest you unless they have some sort of case), or you were not not doing so. Child porn is actually one of those few crimes it’s difficult to think of an affirmative defense of.

                Do you really not understand how this works or are you just playing stupid? I will attempt to re-explain in case you don’t understand:

                There are certain actions that are outlawed, called ‘crimes’. Almost all of those crimes have exceptions, called ‘affirmative defenses’, that makes something that would otherwise be illegal be legal. Self defense for the crime of ‘murder’ is one, and there’s a whole general exception in the law for ‘preventing greater harm’.

                Both those those must be proven by the person asserting them. Crimes, asserted by the state, must be proven by the state. Affirmative defenses, asserted by the defendant, must be proven by the defendant. People can’t just say random things and expect the courts to accept them. (But these do not have to be proven to the same level. The crime has to be proven beyond a reasonable doubt, whereas the defense just has to raise reasonable doubt, IIRC.)

                However, we are not actually talking about that. We are talking about the power of arrest.

                If the police has reason to believe the courts can convict you of a ‘crime’, they will generally will arrest you. If they does not think it can convict you, they will not. This reasoning includes considering obvious possible affirmative defenses that might be raised. In their head, the police conduct a ‘trial simulation’ to see if they have enough evidence to convict.

                The police, however, actually have the power to arrest anyone they think might be a criminal, on the thinnest shred of evidence. It is not the job of the police to give people a trial. It is the job of the police to detain people they think the DA will charge with a crime. (Arresting people that they immediately have to let go because the DA declines to charge them is a career-limiting move.)

                …except in this case, where police apparently are specifically barred from arresting people who claim to have a specific affirmative defense. And the DA is apparently not allowed to press charges unless he somehow proves this is bogus.

                In essence, Stand Your Ground laws set up a court system before the court system. With poorly defined procedure, without the legal balancing act that is our legal system, without the defense having to actually prove anything WRT their affirmative defense, for completely random reasons, stopping the police from holding people in custody who have caused the death of another. (And only those people, for some reason.)Report

    • Brandon Berg in reply to Jason Kuznicki says:

      Statute 776.032. A person who has used deadly force may not be arrested or charged with a crime without probable cause to believe it was not justified.Report

      • Brandon Berg in reply to Brandon Berg says:

        Whoops. I didn’t see that DensityDuck pointed that out. But yeah. The law very explicitly says that there must be probable cause to believe that the killing was not justified even to make an arrest. And as a general rule, prosecutors should not file charges unless they have a solid case, as this is unfair to the accused and a waste of taxpayer money.Report

  4. Mike Schilling says:

    And under SYG, probable cause includes probable cause that the killing isn’t protected by SYG, making an arrest (much less, an indictment) more difficult.  That is, SYG could well mean that there will never be a trial.Report

  5. One objection [from a prosecutor] was that it would be unethical for any prosecutor to take the case in front of a jury unless [s]he believed that he was guilty beyond a reasonable doubt, IOW that otherwise the prosecutor would be attempting to fool the jury, asking them to come to a belief in good faith that the prosecutor herself did not hold.

    Then again, I’m not sure that’s the majority view.

    In a just world, it would be a majority view.  In reality, prosecutors will go way too far on less hard evidence than there is here.

    That is not meant to be a statement on the likelihood of a conviction here, just a statement about how low the bar is not infrequently set.  As I’ve mentioned in these parts before, the one time I had a criminal case, the prosecution went all the way to trial on purported restraining order violations wherein the violations were based on alleged phone calls by the defendant to the “victim.”  As it turned out, the phone records that formed the entirety of the prosecution’s evidence – they didn’t even have a complete copy of the out of state restraining order –  showed dozens of phone calls from the “victim” to the defendant, and at most two from the defendant to the “victim.”  The “victim,” who was never charged AFAIK, also had a restraining order against them.  The complaint itself was beyond laughable in terms of its failure to allege actual criminal acts.

    The prosecutor refused to drop the charges.  In the meantime, the defendant had already sat in a rather infamous jail awaiting extradition for two months before getting assigned an attorney upon arraignment.

    Needless to say, the judge threw out the charges at the close of the prosecution’s case.

    Despite all of this, I learned that the “victim” promptly succeeded in getting virtually identical charges filed in a neighboring court just a few weeks later.  Unfortunately, to this day I do not know what happened in that second case, and it’s entirely possible that the defendant wound up taking a plea bargain there.

    To make it crazier, the only reason the defendant didn’t wind up taking a plea bargain despite the lack of evidence was a series of highly fortuitous events that I can’t really get into.

    Based on the way in which various parties to the case behaved, the sense I got was that the most unusual thing with the case wasn’t so much the complete lack of evidence, nor the prosecutor’s refusal to drop the charges, nor even necessarily the defendant’s extraordinary amount of time awaiting extradition.  Instead, it seemed like the most unusual thing was that the stars aligned in such a way that the defendant was able to refuse the plea bargain.Report

    • Will H. in reply to Mark Thompson says:

      To my understanding, the family law courts are summary courts in which due process is not strictly observed.
      I’ve had issue with one after being named a creditor in a Chapter 7 bankruptcy. I hired a private detective to perform an asset investigation, and the next thing you know, a restraining order was issued, even though the bankruptcy proceedings were disclosed in the original petition.
      I’m looking to file a 1983 action over that, actually. Having difficulty finding an attorney.

      One thing I would like to clear up here is the difference in the standards.
      To my understanding, it’s the reasonable indication standard that is sufficient to initiate an investigation, but the probable cause standard which governs the filing of a complaint. Correct? Is there anything else that lies between the two?Report