Author Topic: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"  (Read 5764 times)

NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #15 on: December 20, 2012, 08:01:08 PM »
Help me to understand how a statutory defense is somehow improper because of the accused trying to use it.  Should the Mental Illness defense be done away with because some accused criminals attempt to misuse it in order to escape prosecution?  It is the job of the judiciary to decide whether a defendants defense against prosecution is valid or not.  Defendants do not "interpret" the law.  Many legal defense strategies are misused by criminal defendants and are properly vetted by our judicial system. 

To use your example, if a citizen or an Officer believes that they are the victim of simple battery, then those offenses are reviewed by the SAO before charging and are eventually settled in court by the Judge. 

Anyone can claim a "stand your ground" defense, or a mental illness defense, or any number of other legal defenses.  It is up to the SAO to evaluate and then a Judge to make a final decision whether any such defense applies.  This is as is was intended and as it should be.

The system works satisfactorily, and has worked satisfactorily with the "stand your ground" defense in place. 
"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

stephendare

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #16 on: December 20, 2012, 08:07:31 PM »
Help me to understand how a statutory defense is somehow improper because of the accused trying to use it.  Should the Mental Illness defense be done away with because some accused criminals attempt to misuse it in order to escape prosecution?  It is the job of the judiciary to decide whether a defendants defense against prosecution is valid or not.  Defendants do not "interpret" the law.  Many legal defense strategies are misused by criminal defendants and are properly vetted by our judicial system. 

To use your example, if a citizen or an Officer believes that they are the victim of simple battery, then those offenses are reviewed by the SAO before charging and are eventually settled in court by the Judge. 

Anyone can claim a "stand your ground" defense, or a mental illness defense, or any number of other legal defenses.  It is up to the SAO to evaluate and then a Judge to make a final decision whether any such defense applies.  This is as is was intended and as it should be.

The system works satisfactorily, and has worked satisfactorily with the "stand your ground" defense in place.

the difference being that if a bullshit simple battery charge is thrown out by the States Attorney Office, then its at best annoying.

If a stand your ground defense is thrown out, on the other hand, there is still a bullet, of varying fatality, inside someone.

its pretty cut and dried.

Mental Illness has a stigma attached to it that can negatively effect your life.  Jobs, military service, dating, child care, and many other areas are concerned when people are mentally ill.  Its also a pretty high bar to prove.

However, there isnt any stigma associated with 'defending yourself'.

"Fear for life' is pretty damned subjective, and as has been illustrated by the actual facts and actual events, people are claiming a liscense to kill.

Im sure your tune will change when an officer gets shot to death and a highway motorist invokes the rule.
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NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #17 on: December 20, 2012, 08:26:47 PM »
Your arguments are not logical.  The simple battery analogy was yours.  If you don't think it applies, then don't bring it up.

There are many legal defenses against the charge of homicide and aggravated battery.  By its very nature the "stand your ground" defense applies to these serious crimes.  It is just as "hard to prove" as the mental illness defense.  And when a "stand your ground" defense is denied by the court, the stigma of being a murderer and convict seems to be every bit as bad or worse than any stigma of "mental illness".  (At least hundreds of defendants have preferred the "stigma" of being declared mentally ill instead of the good life behind bars.)

The elements of being in real danger of death or serious bodily injury is a well explored area of law.   Self defense has been a defense against prosecution since the founding of the republic and before.  The fact is simply that no one is getting away with murder due to this defense.  All of the hoopla is simply over a few lawyers and their clients "claiming" such a defense.  The correct action here is not to join in the noise of the media, but to look at the actual judicial results and make a determination if the law has had a detrimental effect on innocent people, or allowed guilty persons to go free.  Again, I would ask which case has had that result due to the "stand your ground" defense?  I don't see where the defense has been a problem.  The fact that a few defense lawyers and their clients are claiming that they "might" use the defense means absolutely nothing.  They are entitled to claim any legal defense against prosecution, just as they were prior to this change in the statutes. 

I base my "tune" on the facts and how the legal system works.  My vocation, and yours, has little to do with it.   Let's not hope for any deaths on the side of the road.
"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #18 on: December 20, 2012, 08:42:13 PM »
Many do not realize that the only difference made by the "stand your ground" language is that a defendant who claims "self defense" as a defense against prosecution is relieved of any responsibility to retreat or run in the face of death or serious bodily injury. 

Here is the actual statute:

The 2011 Florida Statutes

Title XLVI

CRIMES

Chapter 776

JUSTIFIABLE USE OF FORCE

776.012 Use of force in defense of person.—
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

History.—s. 13, ch. 74-383; s. 1188, ch. 97-102; s. 2, ch. 2005-27.

 
 
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
 

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle 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 entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

______________________________________________________________________________________________

Citizens have always had the right to protect themselves against death or serious bodily injury.  It has never been about who shot first or the type of weapon.  A defendant simply has to provide a "reasonable" explanation of why they felt that their life was in danger.  That "reasonable explanation" is the key here...is it actually "reasonable", does the evidence match the statement, do the witness statements contradict that of the defendant?  Not having to retreat actually assists women or others who cannot easily escape an offender.  It is not in any way a huge change in law.
"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

stephendare

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #19 on: December 21, 2012, 01:47:52 AM »
Your arguments are not logical.  The simple battery analogy was yours.  If you don't think it applies, then don't bring it up.

There are many legal defenses against the charge of homicide and aggravated battery.  By its very nature the "stand your ground" defense applies to these serious crimes.  It is just as "hard to prove" as the mental illness defense.  And when a "stand your ground" defense is denied by the court, the stigma of being a murderer and convict seems to be every bit as bad or worse than any stigma of "mental illness".  (At least hundreds of defendants have preferred the "stigma" of being declared mentally ill instead of the good life behind bars.)

The elements of being in real danger of death or serious bodily injury is a well explored area of law.   Self defense has been a defense against prosecution since the founding of the republic and before.  The fact is simply that no one is getting away with murder due to this defense.  All of the hoopla is simply over a few lawyers and their clients "claiming" such a defense.  The correct action here is not to join in the noise of the media, but to look at the actual judicial results and make a determination if the law has had a detrimental effect on innocent people, or allowed guilty persons to go free.  Again, I would ask which case has had that result due to the "stand your ground" defense?  I don't see where the defense has been a problem.  The fact that a few defense lawyers and their clients are claiming that they "might" use the defense means absolutely nothing.  They are entitled to claim any legal defense against prosecution, just as they were prior to this change in the statutes. 

I base my "tune" on the facts and how the legal system works.  My vocation, and yours, has little to do with it.   Let's not hope for any deaths on the side of the road.

Notnow, you are welcome to argue this with yourself.  Ive always found your attempts to reason through things a bit tiresome, so I won't be responding really.

Its obviously a great law and is working perfectly.

Nothing like being shot in line to get food.

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #20 on: December 21, 2012, 02:40:54 AM »
Again, I realize that you're a ideologue who has his head up his own ass, but people were shooting each other before the law, will be forever.

So.  People were shooting each other before the law.  And they will be forever.

And what do you propose we do with this little pearl of wisdom?

Put it in our pipes and smoke on it a while?

Adam Lanza would have stopped had someone pointed a gun at him. People who do that type of stuff are pussies (that's why they go to places like schools and movie theaters where people WONT be armed)

You have no idea what Adam Lanza would've done. Don't try to pretend you do know. The "experts" don't even know at this point.

NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #21 on: December 21, 2012, 10:14:27 AM »
Your arguments are not logical.  The simple battery analogy was yours.  If you don't think it applies, then don't bring it up.

There are many legal defenses against the charge of homicide and aggravated battery.  By its very nature the "stand your ground" defense applies to these serious crimes.  It is just as "hard to prove" as the mental illness defense.  And when a "stand your ground" defense is denied by the court, the stigma of being a murderer and convict seems to be every bit as bad or worse than any stigma of "mental illness".  (At least hundreds of defendants have preferred the "stigma" of being declared mentally ill instead of the good life behind bars.)

The elements of being in real danger of death or serious bodily injury is a well explored area of law.   Self defense has been a defense against prosecution since the founding of the republic and before.  The fact is simply that no one is getting away with murder due to this defense.  All of the hoopla is simply over a few lawyers and their clients "claiming" such a defense.  The correct action here is not to join in the noise of the media, but to look at the actual judicial results and make a determination if the law has had a detrimental effect on innocent people, or allowed guilty persons to go free.  Again, I would ask which case has had that result due to the "stand your ground" defense?  I don't see where the defense has been a problem.  The fact that a few defense lawyers and their clients are claiming that they "might" use the defense means absolutely nothing.  They are entitled to claim any legal defense against prosecution, just as they were prior to this change in the statutes. 

I base my "tune" on the facts and how the legal system works.  My vocation, and yours, has little to do with it.   Let's not hope for any deaths on the side of the road.

Notnow, you are welcome to argue this with yourself.  Ive always found your attempts to reason through things a bit tiresome, so I won't be responding really.

Its obviously a great law and is working perfectly.

Nothing like being shot in line to get food.



Conflating this incident with the legal defense is exactly why you are wrong.  I would think that being wrong and putting out misinformation would become tiresome.  But you have been doing it for years.
"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

stephendare

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #22 on: December 21, 2012, 10:18:37 AM »
Ah yes, notnow.

This is terribly familiar.

A man shot a guy for being impatient in line, then cites the stand your ground law as his defense.

This of course would be the appropriate setting for you to explain what a great law it is.  Indeed, given your record of these discussions, the only more likely scenario for you to be defending the merits of the law, would include the smoking corpse of a nun being shunted aside by a gun wielding sumo wrestler frantically explaining that her rosary looked like a deadly weapon to him.

Business as usual.
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Jason

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #23 on: December 21, 2012, 10:31:34 AM »
Why would a pizza joint employee be packing anyways?  Surely the establishment has rules against heat totin' while at work.

Being that none of us were witnesses to this event, to argue the details is silly.  Is there a published police report including accounts from witnesses?

NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #24 on: December 21, 2012, 10:45:28 AM »
As usual, your dramatic misrepresentation of the facts has no relation to reality.  You are apparently unwilling or incapable of understanding that a defendants claim of defense has absolutely nothing to do with whether that defense actually applies.  You are unable to point to any real evidence that this defense against prosecution has had any detrimental effect at all.  You seem to think that people are stupid enough (or you don't understand yourself) that these "claims" of the stand your ground defense such as the one in your quoted article is just a defendant or a lawyer throwing it out there to the media. 

Isn't this an "appropriate setting" for a discussion of fact?  You do understand what the meaning of "defense against prosecution" is, right?   The "stand your ground" defense has not resulted in an innocent person being convicted or a guilty person going free under any legal standard of reason.  That is the fact.  That is what you can not get around.  Now, go on with the nonsensical writing about "nuns and sumos" and telling me about how horrible MY debate skills are.

Business as usual.
« Last Edit: December 21, 2012, 11:20:17 AM by stephendare »
"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #25 on: December 21, 2012, 10:49:55 AM »
Obviously Jason, if the events unfolded as described in StephenDare's news story then the waiter committed a crime.  The prosecutor will do their job and if any defense attorney is misguided enough to offer a "stand your ground" defense, the judge will throw it out.   If the news story (God forbid) has the facts wrong then.....well, the prosecutor will do their job and if any defense attorney attempts to use "stand your ground" or any other defense against prosecution the judge will do his/her job and either throw out the defense or apply the law (as a judge should do.)
"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #26 on: December 21, 2012, 10:59:53 AM »
I must admit that my language has apparently been wrong as well.  I did a little research and found the following on an attorney's web site which seems to be a well organized explanation.  The explanation is from Jacksonville attorney Troy Webber:

Florida’s “Stand Your Ground” Law
The Use of Deadly Force, Self-Defense, and Prosecutorial Immunity
 

In the wake of the Trayvon Martin shooting last February, Florida’s “Stand Your Ground” law has come under increasing public scrutiny. While the current debate over the use of deadly force and immunity is understandable, the quality of the legal commentary on the topic leaves something to be desired.  Discussions of Florida’s “Stand Your Ground” law tend to oversimplify the subject or leave out critical analysis of the procedures for asserting prosecutorial immunity under Florida law. 

 

The following article by Jacksonville criminal defense attorney Troy J. Webber discusses the historical background and present scope of the “Stand Your Ground” law as it pertains to the use of deadly force. It further addresses the procedural steps for a defendant to make a claim of prosecutorial immunity.     

 

Florida’s Stand Your Ground Law: History and Present Scope
 

In a highly publicized move, the Florida Legislature enacted in 2005 what has been popularly known as the “Stand Your Ground” law.  This law, as codified in Sections 776.012, and 776.013, Florida Statutes, provides that a person is justified in the use of deadly force and has no duty to retreat if either:

 

(1) the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself, or another or to prevent the imminent commission of a forcible felony; or

 

(2) the person acts under and according to the circumstances set forth in Section 776.013 (pertaining to the use of force in the context of a home or vehicle invasion).   

 

Florida’s “Stand Your Ground” law does not create a new type of affirmative defense. The principle that person may use deadly force in self-defense if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm has been the law in Florida for well over a century. See Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892). Rather than creating a new defense, “Stand Your Ground” broadens the scope of a self-defense claim by establishing a general “no duty to retreat” rule. Prior to the enactment of the statute, a person could not use deadly force in self-defense without first using every reasonable means within his or her power to avoid the danger, including retreat. See Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). As stated in earlier appellate court decisions, a combatant had to "retreat to the wall" before using deadly force.  See Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997). This former “duty to retreat” derived from the common law, rather than from statute.   

 

If abolishing the common law duty of retreat for cases involving the use of deadly force was not enough, “Stand Your Ground” goes one step further in cases involving home or vehicle invasions. Section 776.013, Florida Statutes, provides that, when an intruder unlawfully enters, attempts to enter, or refuses to leave a dwelling, residence, or vehicle owned or lawfully occupied by another person, the owner or occupant is presumed to have held a reasonable fear of death or great bodily harm so as to justify the use of deadly force.  The intruder is furthermore presumed to be doing so with the intent to commit an unlawful act involving force or violence. 

 

The presumptions employed in the context of a home or vehicle invasion mark yet another statutory departure from the common law.  Although, prior to 2005, Florida case decisions had long recognized the "Castle Doctrine" (which provides that where one is not the aggressor and is violently assaulted in one's home, there is no obligation to retreat), the doctrine nonetheless required the owner or occupant of the home to reasonably believe that force was necessary to prevent death or serious bodily harm.  See Danford v. State, 53 Fla. 4, 13 (Fla. 1907). Under the current statute, the reasonableness of the occupant’s belief is presumed so long as he or she acts within a “dwelling,” “residence,” or “vehicle,” as defined in Section 776.013, Florida Statutes.

 

When does Florida’s “Stand Your Ground” Law Not Apply? 
 
Contrary to recent assertions made in the New York Times by UCLA Law Professor Adam Winkler, there are multiple statutory provisions limiting the scope of Florida’s “Stand Your Ground” law. 
 
Under Section 776.013(3), the “no duty of retreat” rule will not apply to a person who is engaged in an unlawful activity or is in a place where he or she has no right to be. Other provisions preclude a defendant from raising a self-defense claim altogether. Under Section 776.041, the justifications for the use of force do not apply if the accused is attempting to commit, committing, or escaping after the commission of a forcible felony.
 
The justifications for use of force will also not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes.     
 
Procedures: How is Prosecutorial Immunity Pursued? 
 

Florida’s Stand Your Ground law provides potential immunity from prosecution for an accused who can establish (by appropriate legal procedures) that his or her actions fell within the purview of the statute. To understand how “Stand Your Ground” immunity works, one has to understand the nature of a self-defense claim and how a such a claim is typically raised in a criminal proceeding. 

 

Self-defense is a type of affirmative defense that operates to avoid (or cancel) the legal effect of a violent act (such as a homicide), which would ordinarily subject the accused to criminal liability. In a self-defense claim, the defendant admits the truth of the essential act (i.e. that he or she committed a homicide or other violence against a person), but justifies the act by claiming that it was necessary to save him- or herself from death, great bodily harm, or other unlawful uses of force.  In the context of a homicide, a defendant claiming self-defense essentially says: “Yes, I killed.  But I did not murder (commit an unlawful killing) because, under the facts and circumstances, my acts were legally justifiable.” Under common law and in most criminal cases today, the question of justifiable self-defense is a factual question for the jury to resolve at trial.  The jury is the “fact-finder.” They decide whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.     

 

Here again, Florida’s Stand Your Ground Law makes another significant change from the common law. Under Section 776.032, Florida Statutes, a person who uses force as permitted in Section 776.012 or Section 776.013 “is immune from criminal prosecution and civil action” for the use of such force (with certain limited exceptions). Note the word “immune.” This means that, if the accused can factually establish pre-trial that his or her use of deadly force occurred under the circumstances outlined in Section 776.012 or Section 776.013, the State of Florida is legally and procedurally barred from further prosecution in the matter.  In the event that a civil action is brought against the person who used qualifying deadly force, a court must award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred in the defense of the case.   

 

The procedures for asserting prosecutorial immunity under the “Stand Your Ground” law are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. The Petersen decision definitively established that Section 776.032 was created by the Florida Legislature to establish a “true immunity” and not merely an affirmative defense.  The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes.  Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.   

 

NOTE: In Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the First District decision in Petersen, resolving a previous conflict that existed between the First and Fourth District Courts of Appeal.  Petersen is now binding law on all Florida courts.

 

Thus, under the procedures outlined in Petersen, prosecutorial immunity does not attach under Florida’s “Stand Your Ground” law by way of mere factual assertion. The issue is raised pre-trial through the filing of a Motion for Declaration of Immunity and/or Dismissal. To obtain such a declaration by the trial court, a hearing is held where the defendant must demonstrate by a preponderance of the evidence his or her qualifications for immunity. This essentially reverses the burden of proof traditionally at play in a criminal case.  The defense presents the evidence, shows that the statutory prerequisites have been met, and requests that the court grant the motion and appropriate relief.  If the Motion is granted, the defense then files a Motion to Dismiss, as there is no longer a legal basis to proceed with the prosecution. The Motions for immunity and dismissal are frequently consolidated into a single filing.   

 

With regard to the Trayvon Martin case, the notion that Florida’s Stand Your Ground law prohibited the prosecution of George Zimmerman is fundamentally false.  “Stand Your Ground” in no way prevents a prosecution from being initiated against an accused. Prior to forming Hussein & Webber, P.L., I served as an Assistant Public Defender in the Eighteenth Judicial Circuit of Florida, the circuit governing Sanford, Florida. During that time, the State Attorney’s Office for the Eighteenth Judicial Circuit routinely prosecuted defendants in the face of “Stand Your Ground” Motions.  In those cases, the prosecutor would file charges, and, at an appropriate stage, defense counsel would file a Motion for Declaration of Immunity and Dismissal [Click Here for an Example]. The matter was then heard at an evidentiary hearing, where the defense had to show its entitlement to immunity by a preponderance of the evidence.  If successful, immunity was granted and the case dismissed.  If unsuccessful, the prosecution resumed and the case resolved by way of plea or trial.

 

Nothing about the Trayvon Martin case prevents these procedures from being followed. Now that the State has decided to pursue charges, George Zimmerman, acting through his attorneys, may file a Motion for Declaration of Immunity and Dismissal.  This will occur, if at all, once the parties are satisfied that they have sufficient discovery to conduct an evidentiary hearing.  If the Motion succeeds, the case will be dismissed.  If the Motion fails, the case will likely proceed to trial, where the application of self-defense principles under Florida’s “Stand Your Ground” law will be decided by a jury.   

 

"We may yet become the first nation to die from a terminal case of frivolity. Other great nations in history have been threatened by barbarians at the gates. We may be the first to be threatened by self-indulgent silliness inside the gates." - Thomas Sowell

stephendare

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #27 on: December 21, 2012, 11:22:46 AM »
As usual, your dramatic misrepresentation of the facts has no relation to reality.  You are apparently unwilling or incapable of understanding that a defendants claim of defense has absolutely nothing to do with whether that defense actually applies.  You are unable to point to any real evidence that this defense against prosecution has had any detrimental effect at all. 

Other than knuckleheads thinking that it gives them the possibility of shooting people without consequences, which has demonstrably happened in this case...... other than that you mean...

What a maroon.  But the world is full of guys like this, notnow.  as you surely know from your work.
« Last Edit: December 21, 2012, 11:44:45 AM by stephendare »
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NotNow

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #28 on: December 21, 2012, 11:39:41 AM »
Namecalling...when the facts of a debate don't support your argument.

Business as usual...from a man who calls himself a "journalist".

Have a good day StephenDare!

Edit:  But thanks for editing your post so that you are no longer calling ME the maroon, but the aggressor in your news item.  Based on the story, I would agree that he is a "maroon".  (Who seems likely headed to prison.  Surprise, the system works!)
« Last Edit: December 21, 2012, 02:42:50 PM by NotNow »
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Pinky

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Re: Man Shoots Impatient Customer. Cites Florida's "Stand Your Ground Law"
« Reply #29 on: December 21, 2012, 10:32:51 PM »
This is so typical for you Stephen..

You make it sound like some lunatic shot a man for complaining about his pizza, which is clearly not the case.

The man who got shot had become belligerent about a delay in his order.  Another patron interceded on behalf of the restaurant workers and was physically attacked by the out-of-control pizza complainer and defended himself by shooting the man.  The shooter did not initiate the violence but instead simply responded to violence being visited upon him for daring to ask another patron to calm down and not menace the people around him. 

In that reading, "stand your ground" isn't quite so far-fetched at all.  Indeed, I would argue that it was passed precisely for situations such as this; so that criminals and thugs know that if they choose to initiate violence there is an excellent possibility that they will get shot in the gut.  Twice.