Stand Your Ground Law Does Not Apply - Nothing Prevents Charges Being Brought
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Note: The prosecutor agrees with the points in this post and the shooter has indeed been charged with manslaughter.
An argument over a parking spot turned deadly when one man was shot and killed. Instead of seeking justice in the case - which likely would have resulted in charges being brought - both the local sheriff and the local and national media are using this incident to attack both licensed concealed carry and stand your ground laws. Here's why they are dead wrong.
What Is Stand Your Ground?
Stand your ground laws do not massively expand the right of self-defense. They are a response to several cases where people were convicted because prosecutors were able to prove - after analysing the incident at leisure - that the person could have retreated rather than using force to defend themselves. Self-defense incidents take place in seconds, and it is not reasonable to expect victims to be able to see every possible means of escape.
Stand your ground laws do not otherwise expand the right of self defense. Before using deadly force, you must still face the threat of death or great bodily injury. Should a threat be presented and then disappear, the right to use deadly force disappears with the threat.
Stand your ground laws do not otherwise expand the right of self defense. Before using deadly force, you must still face the threat of death or great bodily injury. Should a threat be presented and then disappear, the right to use deadly force disappears with the threat.
Other Provisions In Florida Law
Completely independent from "Stand Your Ground", current Florida has another provision of law that is a factor here. In most states, self-defense is what is called an "affirmative defense". This means that the defendant must prove that he or she acted in self defense. Obviously, this is the exact reverse of what the standard is in the rest of criminal law, where the burden of proof rests with the prosecution. Without question, requiring someone to prove self-defense results in some people who have used reasonable force in self defense being convicted because they are unable to prove that fact. Recent changes in Florida law require the prosecution to prove that the defendant did not act in self defense when such a defense is used - aligning self defense law with the rest of criminal law.
The Current Incident
First, let's look at the video - which ends just before the fatal shot is fired:
At first, it is clear that the man who walks up and shoves the man is indeed initially the aggressor. However that does change.
Why "Stand Your Ground" And Self-Defense Does Not Apply
This shooting DOES NOT have anything to do with "stand your ground laws" - and the shooter should be charged:
1) The man who fired is on the ground - therefore he did not have the ability to retreat from an upright attacker. Therefore, "Stand Your Ground" is completely irrelevant.
2) It is debatable if the man had the right to draw his firearm after being pushed to the ground. However, he probably did have good cause to draw his firearm and likely would not have been charged with brandishing if he did not fire. However, IMHO, this is why carrying something less lethal, in addition to a firearm, is a very good idea. Had the initial aggressor been sprayed with pepper spray, he likely would have been arrested on assault charges.
3) At the time he was shot, the man who was shot and killed was retreating from the man he had pushed. This negates the ability to legally use ANY force - let alone deadly force. When he fired, the shooter became the aggressor, and therefore can and should be charged.
Why There Is No Excuse Not To Prosecute
The Sheriff, in a widely reported news conference, said he could not prosecute because of the "Stand your Ground" law. As we have already seen, stand your ground cannot possibly apply in this case. Neither can self-defense. Furthermore, there is a video tape that proves the preceding.
However, the sheriff contends that he cannot recommend charges because the shooter might testify that he thought that his life was in danger. The problem with this is that a self-defense legal defense requires that the fear be reasonable. Fearing an attacker who is retreating is not reasonable. There is certainly enough evidence to bring charges.
Finally, the real goal here is to discredit Stand Your Ground and licensed concealed carry. As we have seen, nothing in this case precludes prosecution - and, no matter what you have heard, cases like this are extremely rare. Government statistics prove this, When they happen, they should be prosecuted like any other crime.
Exactly. "I was in fear for my life." is not a get-out-of-jail-free card. The fear has to be reasonable. In my 20+ years of training law enforcement officers in judgmental use of force, far too many students tried to use this as a magic talisman to justify poor judgment in a shoot-no shoot scenario. There are a lot of factors at play in this scenario, such as the shooter's age and physical condition, but the bottom line is whether it was reasonable for him to be in fear for his life. That is a jury question.
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