Florida's "Shoot First" Law Reflects Crazy Ideology of Preemption

[marmar]

from Comment Is Free, via AlterNet:


Florida's "Shoot First" Law Reflects Crazy Ideology of Preemption

By Isaac-Davy Aronson, Comment Is Free. Posted August 17, 2007.



Florida's crazy "stand your ground" gun law is part of an ideology of preemptive action against any perceived enemy spreading from the White House on down.


Crossing the state line into Florida on I-75, one is greeted by a billboard reading, "Visitor Warning. Florida residents can use deadly force. Please be careful." Erected by the Brady Campaign to Prevent Gun Violence, the sign is a reference to the fact that, for the last year and a half, Floridians have been allowed by law to shoot anyone they want.

Well, not just anyone. A citizen can use deadly force only if, in the words of the law, he or she "believes it is necessary to do so to prevent death or great bodily harm to himself or herself or to another person or to prevent the commission of a forcible felony." So breathe a sigh of relief. As long as you don't give anyone a reason to feel threatened, you're perfectly safe.

The "stand your ground" law - called the "shoot first" law by opponents - passed the Florida legislature by a wide margin. Since it went into effect, similar laws have been passed in at least 14 other states and are being considered in many more.

The law allows someone attacked, even in a public place, to "stand his or her ground" - and to use deadly force if he or she feels it necessary. It revokes a legal requirement to try to avoid conflict. Thus the case of the West Palm Beach cab driver who shot and killed a drunken passenger in an altercation after dropping him off.

In the eminently reasonable words of the foreman of the deadlocked jury, the cab driver "had a lot of chances to retreat and to avoid an escalation. He could have just gotten in his cab and left. The thing could have been avoided, and a man's life would have been saved". ......(more)

The complete piece is at: http://www.alternet.org/story/59584/

[Deep13]

1. It has to be apprehension of deadly force.

Despite the media hype about FL, this is the majority rule among American states. A minority of states require retreat if reasonable. As a practical matter, all the retreat rule does is make criminals out of victims.

[RaleighNCDUer]

3. Bullshit.

It means someone is justified in shooting someone else when, in the middle of an argument, that someone else suddenly reaches for his belt - never mind that he was actually reaching for his phone. All he has to do is say, "I thought he was reaching for a gun".

The retreat rule simply says that overt violence should not be the first option. Generally speaking it takes two to make a fight. Self defense is always an option, but it should not be the first and only option. The retreat rule demands a reasonable effort to avoid conflict, nothing more.

[Deep13]

5. It only takes one person to commit a violent felony.

Not all crime victims are "asking for it."

The flaw in your analysis of the retreat rule is that the jury has no real way of knowing whether or not the former-victim-now-defendant could have fled. The burden of proof is on individual to demonstrate self defense. What seems clear to the individual as necessary self defense at the time is pretty murky to a jury a year or so later. In other words, she has to do more than say "I though he was reaching for a gun." She has to PROVE that she thought that. Even if the victim prevails in convincing a unanimonus jury that she was in the right, sitting in jail all that time will have ruined her. Almost every time I check the record on a case where someone has been accused of a felony and has been unable to make bail (or bail was refused by the court) there is also a civil foreclosure or eviction case filed against the same defendant.

Besides, except for the highly publicised example of FL, most people don't know whether they live in English Rule (retreat) or American Rule (stand-your-ground) jurisdictions. Consequently, I doubt how much of a deterent it really has. Anyway, it ought to be up to the victim and not the criminal to decide whether or not the victim should fight or run away.

The only difference between this statute and most other states is that most statutes put the word "reasonably" before "believes." I'm relying on what the OP wrote for the language since I don't happen to have a subscription to the FL law codes. I do not know if there is some other FL statute that defines the word "believes" as meaning a reasonable belief or if the FL legislature left it out on purpose.

What have been the results of this new law in criminal shootings?

[RaleighNCDUer]

10. Double bullshit.

We both know that the vast majority of applications of this is at least one, if not two, drunks spoiling for a fight.

As for the violent felony, in the rare case of someone being jumped by a criminal in a mugging, the self-defense application is obvious. Additionally, in those rare cases, the person being jumped is 99% taken by surprise - no criminal is going to try to mug someone who looks like they can fight back. Someone who is intent on robbing or hurting you is not going to give you a chance to respond, so if you're packing you're probably just going to give them the gun.

If it is a fight, as in my first example, if you have an opportunity to 'stand your ground', you also have an opportunity to withdraw.

BTW, nice propagandistic use of 'she' for the victim. As stated above, the 'stand your ground' is a testosterone driven imperative and most women have the good sense to get the hell out if they feel threatened.

'Stand your ground' does nothing to stop violent criminals except possibly move them to be more violent quicker to prevent someone from pulling out their weapon. If you've ever been the victim of violent crime you know that there is almost never a chance that you could have prevented it. The violent criminal depends on the suddenness and violence of the attack to prevent self defense. They don't give you the option of 'standing your ground'. Therefore, the concept of standing your grouond is relegated to drunken parking-lot brawls, and THAT you can walk away from.

[Deep13]

11. As someone with experience with actual juries...

...I call shenanigans on your claim of "Double Bullshit."

You have yet to cite any factual basis to suppose that most gun related deaths are the result of drunken bar fights. You are being disingenuous by making such statements while labeling my own experience as propoganda. It is a kind of premptive insult. Accusing me of propaganda almost guarantees that I will not claim the same about you.

Federal law prohibits the possession of firearms in most places that serve alcohol.

I have been the victim of violent crime. It was unarmed but potentially lethal. I had a chance to defend myself, but somehow I was afraid I would get in "trouble" if I plunged a dinner fork into my step-monster's arm to get him to release his grip on my thoat. No one has a duty to be a victim. Frankly I refuse not to live the way I want because of crime. You perspective seems to be that it is all right to create a few helpless victims in order to further your social experiment of controlling personal behavior by the state.

We are each applying different value judgments to this issue and neither of us is factually wrong.

[RaleighNCDUer]

21. Spin away.

I never said most gun deaths are from drunken bar fights. I very clearly said that the 'stand your ground' is only applicable to such situations, because when a predator attacks he will attack in a way that prevents response, armed or not. Therefore, most predators must be removed from the 'stand your ground' equation. That leaves domestic violence and drunken fights (which are not necessarily mutually exclusive), which are situations of escalating tensions to the point of violence - and where escalation is possible, so is de-escalation.

The example you cited was clearly domestic violence. And I hope you will forgive me doubting that the thing on your mind, when his hands were on your throat, was "will I get in trouble if I defend myself?" In any case, that situation has nothing to do with criminal predators and their victims.

Re: propaganda, your profile identifies you as male - yet you postulate a hypothetical female victim. A very obvious ploy.

IMO, if you insist you need a gun you are already a victim. If you didn't live in fear, you wouldn't need a gun. I don't carry, and I don't live in fear.

[Deep13]

22. spin yourself.

Do not call me a liar unless you are standing in front of me. What I recounted is precisely what I was thinking. Most violent crimes are domestic in nature. What you call propoganda, I call winning the argument.

People are either male or female. It seems rather arbitray to me always to use the masculine pronoun, so when I think of it I use the feminine. I refuse to use the plural unless the subject clearly is plural. Besides, a man facing an unarmed assailant is unlikely to be in moral danger. They will probably be close to evenly matched unless one is infirmed. Having said that, any reasonably fit man can kill almost any woman with his bare hands. (This unfortunate evolutionary fact is why most societies are male-dominated.) For that reason I think a personal firearm is a lot more valuable to a female than to a male.

Again, you use the word "most" again. The exceptions must be victims.

I've said my peace and have nothing further to contribute to this argument. In fact we are already repeating ourselves.

[benEzra]

14. It does no such thing.

It means someone is justified in shooting someone else when, in the middle of an argument, that someone else suddenly reaches for his belt - never mind that he was actually reaching for his phone. All he has to do is say, "I thought he was reaching for a gun".

It does no such thing. The presumption of justifiability under the new law only applies to shooting someone who is actually making an illegal forced entry into your home, or is carjacking you.

The rules for self-defense on the street in Florida are the same as California's and pretty much every other state's, i.e. reasonable fear of death, serious bodily harm, or a forcible felony. The writer of the article in the OP conveniently forgot to mention that that little legal term means, and I quote, "The facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault," or a forcible felony.

That is not the same as "I can shoot anybody who I am skeered of." It is the same standard for justifiability that most other states use, including most blue states.

The retreat rule simply says that overt violence should not be the first option. Generally speaking it takes two to make a fight. Self defense is always an option, but it should not be the first and only option. The retreat rule demands a reasonable effort to avoid conflict, nothing more.

You misunderstand Florida's now-defunct "duty to retreat," which went much farther than your statement. Florida's self-defense law pertaining to public places is now pretty much the same as that of California and most blue states; the old law was the most extreme retreat requirement of any state, AFAIK, and applied even if somebody was actually trying to kill you and had a weapon in their hand (Massachusetts used to have one that was worse, but repealed it many years ago, IIRC).

[Solo_in_MD]

18. Retreat rule is capricious and leaves the DA free to 2nd guess

we have enough of those laws as it is

[TankLV]

2. This is just plain SICK and WRONG and has to be stopped NOW...

[BushOut06]

4. Any coincidence that the murder rate in Orlando is an an ALL-TIME HIGH?

Last year, Orlando saw its murder record shattered - I believe we actually passed the record half-way through the year. This year, it looks like we're on pace to beat last year's record. You can't turn on the news in Orlando anymore without hearing about someone getting shot.

[Deep13]

6. Murders are not covered by this law.

A murder is by definition not self defense.

[BushOut06]

8. Maybe not, but it's indicitive of Florida's violent, gun-crazy culture

Guns flow fast and easy in Florida, easily available at almost any pawn shop or gun show (which seem to be quite frequent). The fact that Floridians are encouraged to take the law into their own hands, and shoot when they feel "in danger of their life" doesn't seem to help any.

Gun-rights activists try to make the argument that areas with lax gun laws often see a decrease in violent crime. That is absurdly false. If anything, violent crime in Florida has skyrocketed since we passed the "shoot-first" law.

[Deep13]

9. The gun show thing is a real problem nationwide.

Since those with a firearm disability cannot buy them anywhere that uses a background check (that is, licensed dealers), they necessarily rely on private sales. Under present Federal law, a gun show is a private sale, despite the fact that most of the vendors there are conducting regular business. Plus it gives people who commit illegal shootings a cover for their tracks. When the police ask to see the gun with the serial number on file at the FBI, they can say "I sold it at a gun show." That requires no paperwork, unlike a theft which would suggest a police report and maybe an insurance claim.

Beyond that, it is very difficult to draw cause and effect from crime statistics. Do states with high rates of violent crime have high rates because there are lax gun laws or are there a lot of guns in response to high rates of violence? Maybe the two have nothing to do with each other.

[Solo_in_MD]

19. Gun show laws vary widely, many require background checks

"firearms disablitiy" I assume you mean convicted felon

[Deep13]

20. Or mentally incompetent, or under indictment,...

...or convicted of misd. domestic violence or a nonresident alien etc.

[DavidMS]

24. That is not correct (at least in VA)

I went with some friends to a gun show in Northern Virgina. Won't go into all the details here but the vast majority of sales are dealer to qualified general public. I did see a few people walking around with signs for trading firearms. Most of the sales were at dealer tables and these dealers were Federal Firearm License Holders who run must run background checks. If the purchaser makes a clerical error on the form (happened to one of my friends) or the dealer for whatever reason thinks something is wrong with the purchaser NCIS or the dealer will deny the purchase.

In the case of the friend he had a non-disqualifying juvenile conviction for what essentially was a prank gone awry and failed to properly disclose it on the form. He ended up spending the afternoon in the country jail and some $2000 on legal fees, avoided jail and can try to buy again in two years. It will be the world's most expensive Bernetta 92FS. The other case a dealer though a sale was a straw purchase and denied it.

[Harry Monroe]

7. When in Florida, don't stare too long at the crazy people

[Deep13]

13. How can you tell who is crazy? Do you stare at them elsewhere?

:shrug:

[Harry Monroe]

15. You can't

And that it is why it may be safer in Florida to just avoid any kind of confrontation whatsoever. You may get killed because someone may take something you said or did the wrong way. :hide: :dilemma: :crazy:

[Deep13]

12. Previous post concerning this and other emotionally charged issues.

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=903489

[benEzra]

16. Sigh...OK, time for self-defense-law 101...

The general criteria that must be met for a homicide to be ruled justifiable are very similar in every state, including Florida. The best phrasing I have found so far is in Steve Johnson, Concealed Carry Handgun Training, North Carolina Justice Academy, 1995, pp. 3-4, but these criteria would apply in every state, and definitely apply in Florida, Georgia, Kentucky, and other stand-your-ground states. (Note that like Florida, my state of North Carolina is also a Castle Doctrine state.)

(1) Justified Self-Defense

A citizen is legally justified in using deadly force against another if and only if:

(a) The citizen actually believes deadly force is necessary to prevent an imminent threat of death, great bodily harm, or sexual assault, AND

(b) The facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault, AND

(c) The citizen using deadly force was not an instigator or aggressor who voluntarily provoked, entered, or continued the conflict leading to deadly force, AND

(d) Force used was not excessive -- greater than reasonably needed to overcome the threat posed by a hostile aggressor."

(Emphasis added.)

Note that ALL FOUR conditions must generally be met in order for a shooting to be ruled justifiable (there is an exception for someone kicking your door in, but we'll get to that in a minute). A small handful of states used to add a FIFTH criterion to the list above, that of running away from the imminent lethal threat before turning to defend yourself (and hoping the attacker doesn't kill you while your back is turned). Florida was one of those states, and eliminated it with the new law; most states have never had such a provision to start with.

OK, the really important part. Where a lot of people get spun is the deliberate distortion of the phrase "reasonably believes" in self-defense statutes. Reasonable belief does *NOT* mean merely "feeling threatened"; the phrase is a legal term, and its definition in the context of self-defense law is that in paragraph (b) above--i.e., that "the facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault." Merely "feeling threatened" isn't reasonable belief; the belief has to be objectively rational, i.e. there is in fact a guy standing in front of you holding what appears to be a knife in a threatening posture.

Also, it is important to understand that a claim of self-defense is not an automatic exemption to the laws against homicide. Rather, it is what is known as an "affirmative defense"; unlike the regular innocent-until-proven-guilty standard applied to a criminal act, the onus in a self-defense shooting is on the shooter to demonstrate that the shooting WAS indeed justifiable self-defense. In other words, in a self-defense case, the standard is "guilty unless shown innocent," and if the shooting is questionable, it is much more likely to swing against the person claiming self-defense than it is to swing in their favor.

There are a few other conditions that may constitute justifiable self-defense; for example, there is a provision in U.S. legal tradition called the Castle Doctrine that says that if someone is making an illegal forced entry into your home (whether by door or window, whatever), you are authorized to use whatever force is necessary to stop them and it would ordinarily be ruled justified; the presumption is that if the guy is kicking your door down, he's not there to sell magazine subscriptions. A majority of states explicitly spell out the Castle Doctrine in their laws, I believe, but the principle is there in every state, even Massachusetts. Florida, and most other states, also allow the use of lethal force to stop a "forcible felony," i.e. rape, aggravated assault, armed robbery, etc. Texas used to also allow lethal force in defense of property in some circumstances, which probably dates back to frontier days when stealing your horse or your food would cause you to die of exposure or starvation); they may still, but it is my understanding that in general, shooting in defense of property in Texas can get you in big trouble.

OK, back to the new Florida law. The Florida law's primary effect was to eliminate the "duty to run away" provision, which was very subjective and had been abused by overzealous prosecutors; as I mentioned, most states don't have them, and a truly questionable scenario (you could have walked away in complete safety, but didn't) would fail points (a) and (c) anyway. The new also law reaffirmed the Castle Doctrine as it applies to your home, and also extended it to your car, so that if somebody actually tries to carjack you, you can use force to stop them as if they were breaking into your home (a response to South Florida carjackings which I think is reasonable). Finally, the new law states that if somebody attacks you and you use force in self-defense, and your use of force is ruled justifiable, the attacker cannot turn around and sue you for the injuries you caused him (yes, that happens). I'd refer you to Gutmacher, Florida Firearms: Law, Use, and Ownership as the definitive text on Florida self-defense law. The latest edition is current with the revised statutes.

Now, Georgia and other states didn't have duty to retreat provisions anyway, so the changes there seem to be mostly just clarification. I actually posted the Georgia statutes a while back, before the "stand your ground" law was passed and after it was passed, and the new law didn't legalize anything that wasn't already legal.

And in ANY state, if you shoot somebody just because you "feel threatened," you will go to prison for manslaughter to second-degree murder, depending on the mitigating circumstances, regardless of any Bradyite BS to the contrary.

The real innovation in the Florida law was in extending the Castle Doctrine (already law in Florida and most other states) to your car, so that if you were being carjacked, you could use countervailing force without having to first prove the carjacker meant harm, on the same grounds as if the carjacking were a home invasion, and that if you defend yourself and it is ruled justified, your attacker cannot turn around and sue you.

[Solo_in_MD]

17. More Brady Bunch Bullshit

The results todate do not indicate that "stand your ground" is a problem, and its not used just for firearms

[Scout]

23. one more reason to avoid Florida (not that I needed another one). n/t