Two Scenarios On The Right To Shoot?

AC ManAC Man Posts: 5,280 Admiral
I've always wondered about this. Case # 1. You come around the corner down town and there is a guy beating the life out of a woman with a tire iron. He does not stop when you give the command to stop. Are you legally allowed to shoot?

Case # 2. You get in a fist fight, it may be over nothing, but you may be getting your **** kicked. Can you pull a gun and shoot the guy.

I ask because I have read about both cases but never heard an answer. Both intriguing because firing my weapon would be a tuff decission. Don't know that I could do it. Know a guy that shot and killed his business partner in a drunken fight. He got off but was never the same

So my question is not about morales but is it legal?
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Replies

  • mindyabinessmindyabiness Posts: 5,337 Admiral
    Depends......
    Arguing with idiots is like playing chess with a pigeon... No matter how good you are, the bird is going to crap on the board and strut around like it won anyway.
  • dnelsondnelson Posts: 245 Deckhand
    1. Yes
    2. Possibly, but if you instigated the fist fight your out of luck.
  • AC ManAC Man Posts: 5,280 Admiral
    Depends......

    LOL. That's the point. Their is no depends. I spelled it out for you.
  • Gary SGary S Posts: 1,613 Captain
    You come around a corner and find someone whaling on someone with tire iron, kill them. You get into fist fight, you throw first punch, take it like a man. Someone sucker punches you and you have no other means of defense. Shoot him. This is my opinion and is in no way legal advice. But I will say if you have any doubt about pulling the trigger, don't carry. It could get you killed.
  • MadbeachMadbeach On the riverPosts: 970 Officer
    I think a lot has to do with the scenario. Is the man that is beating the woman protecting himself from an imminent threat (what if the woman had a gun and was stalking him and threatened his life?) 2nd scenario, did you have a way to get out of the situation, or did the threat come to you and you have no other choice but to fight and feel an imminent threat or great bodily harm?
  • dragon baitdragon bait Posts: 7,519 Admiral
    #1 yes
    #2 ask Zimmerman
  • treemanjohntreemanjohn Posts: 3,863 Captain
    I'll simplify it.

    CHAPTER 776
    JUSTIFIABLE USE OF FORCE
    776.012 Use or threatened use of force in defense of person.
    776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.
    776.031 Use or threatened use of force in defense of property.
    776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.
    776.041 Use or threatened use of force by aggressor.
    776.05 Law enforcement officers; use of force in making an arrest.
    776.051 Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.
    776.06 Deadly force by a law enforcement or correctional officer.
    776.07 Use of force to prevent escape.
    776.08 Forcible felony.
    776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
    776.09 Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.
    We’re like the piggy bank that everybody is robbing, and that ends President Trump
  • 1outlaw1outlaw Naples FLPosts: 1,147 Officer
    Yes
    Depending on instigator will determine if its legal or not.
    Jason :USA
  • dragon baitdragon bait Posts: 7,519 Admiral
    1outlaw wrote: »
    Yes
    Depending on instigator will determine if its legal or not.

    Or lack of a witness
  • Soda PopinskiSoda Popinski GrovelandPosts: 11,216 AG
    was the guy beating you up because you were fishing his "spot"? Or did you start the fight because he was fishing your spot?
    People use statistics the way a drunk uses a street light, for support rather than illumination.
  • 1outlaw1outlaw Naples FLPosts: 1,147 Officer
    Or lack of a witness

    True!
    Jason :USA
  • Westwall01Westwall01 Posts: 5,453 Admiral
    Gary S wrote: »
    You come around a corner and find someone whaling on someone with tire iron, kill them. You get into fist fight, you throw first punch, take it like a man. Someone sucker punches you and you have no other means of defense. Shoot him. This is my opinion and is in no way legal advice. But I will say if you have any doubt about pulling the trigger, don't carry. It could get you killed.

    I tend to agree with Gary if all we have to go off of is what was originally written in the first post. That being said there are always variables to every situation.
  • TarponatorTarponator Under a BridgePosts: 12,959 AG
    1. Yes. There is forcible felony in progress.
    2. Maybe -- as I understand the law you need to be reasonably afraid for your life. I would probably take the *** beating, if that's the way it's heading, rather than pull my gun.
  • cadmancadman Home of the Gators Posts: 28,411 AG
    AC Man wrote: »
    I've always wondered about this. Case # 1. You come around the corner down town and there is a guy beating the life out of a woman with a tire iron. He does not stop when you give the command to stop. Are you legally allowed to shoot?

    Case # 2. You get in a fist fight, it may be over nothing, but you may be getting your **** kicked. Can you pull a gun and shoot the guy.

    I ask because I have read about both cases but never heard an answer. Both intriguing because firing my weapon would be a tuff decission. Don't know that I could do it. Know a guy that shot and killed his business partner in a drunken fight. He got off but was never the same

    So my question is not about morales but is it legal?

    The first one, I would say yes. The woman's life is in danger.

    The second would be doubtful. You could claim your life was in danger, but I doubt it would fly. There could be many factors to make it a solid defense, age of attacker and victim, who started it, whether or not the attacker knew you had a gun and might go after it, threats made before the fight, why the fight started, various other things, but a simple fist fight and your losing, I would say no.

    Mini Mart Magnate

  • cadmancadman Home of the Gators Posts: 28,411 AG
    I'll simplify it.

    CHAPTER 776
    JUSTIFIABLE USE OF FORCE
    776.012 Use or threatened use of force in defense of person.
    776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.
    776.031 Use or threatened use of force in defense of property.
    776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.
    776.041 Use or threatened use of force by aggressor.
    776.05 Law enforcement officers; use of force in making an arrest.
    776.051 Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.
    776.06 Deadly force by a law enforcement or correctional officer.
    776.07 Use of force to prevent escape.
    776.08 Forcible felony.
    776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
    776.09 Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.

    That is force, not deadly force.

    This is required for deadly force
    A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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.

    You need to remember the reasonable part. You will be judge by the actions a reasonable person would have taken.

    Mini Mart Magnate

  • AC ManAC Man Posts: 5,280 Admiral
    Hey
    cadman. The case I read about the man beating the woman was in a gun mag. You never here of a good Samaritan shooting a bad guy hurting someone.
  • stc1993stc1993 Albany, GA Carrabelle, FLPosts: 6,115 Admiral
    They have them every month in the NRA magazine.
  • cadmancadman Home of the Gators Posts: 28,411 AG
    AC Man wrote: »
    Hey
    cadman. The case I read about the man beating the woman was in a gun mag. You never here of a good Samaritan shooting a bad guy hurting someone.

    I have read that happening several times. Every case I read where the woman's life was in danger, the shooter was never charged. In a few they were called a hero.

    Mini Mart Magnate

  • Florida BullfrogFlorida Bullfrog Posts: 2,631 Captain
    cadman wrote: »
    The first one, I would say yes. The woman's life is in danger.

    The second would be doubtful. You could claim your life was in danger, but I doubt it would fly. There could be many factors to make it a solid defense, age of attacker and victim, who started it, whether or not the attacker knew you had a gun and might go after it, threats made before the fight, why the fight started, various other things, but a simple fist fight and your losing, I would say no.

    1. Yes
    2. Probably/Possibly. That's why prosecutors don't like stand your ground in its current form and oppose the bill to make it even harder to disprove self defense. The current state of the law is that the Defendant has to make a showing that he was acting in self defense before the judge. If he's successful in that showing, the case gets thrown out. The law is about to change to where the Defendant doesn't have to make a showing, but instead the presumption will be that the Defendant was right in the use of deadly force unless the State can conclusively prove otherwise. If there is no witness, video, or other strong evidence to disprove the Defendant's assertion, then the presumption will stand and the case will be thrown out. All of those factors you name won't matter if there's no witnesses to contradict whatever the Defendant says.

    So when the new bill passes, #2 will always be unprosecutable if there's no eyewitness or video that disproves a lying assertion from the Defendant that they were only acting in self defense because the other guy attacked first.

    That would mean that if your wife is walking down a dark alley and a guy jumps out and shoots her, that guy will not be able to be prosecuted if he claims she attacked first and no witnesses or video contradicts his assertion. A jury won't get to decide. The presumption will be that the Defendant is telling the truth absent clear evidence that he isn't. Things like the Defendant's record or the size of your wife won't come into play. The law will create a presumption that the Defendant is right unless proven otherwise.
  • cadmancadman Home of the Gators Posts: 28,411 AG
    1. Yes
    2. Probably/Possibly. That's why prosecutors don't like stand your ground in its current form and oppose the bill to make it even harder to disprove self defense. The current state of the law is that the Defendant has to make a showing that he was acting in self defense before the judge. If he's successful in that showing, the case gets thrown out. The law is about to change to where the Defendant doesn't have to make a showing, but instead the presumption will be that the Defendant was right in the use of deadly force unless the State can conclusively prove otherwise. If there is no witness, video, or other strong evidence to disprove the Defendant's assertion, then the presumption will stand and the case will be thrown out. All of those factors you name won't matter if there's no witnesses to contradict whatever the Defendant says.

    So when the new bill passes, #2 will always be unprosecutable if there's no eyewitness or video that disproves a lying assertion from the Defendant that they were only acting in self defense because the other guy attacked first.

    That would mean that if your wife is walking down a dark alley and a guy jumps out and shoots her, that guy will not be able to be prosecuted if he claims she attacked first and no witnesses or video contradicts his assertion. A jury won't get to decide. The presumption will be that the Defendant is telling the truth absent clear evidence that he isn't. Things like the Defendant's record or the size of your wife won't come into play. The law will create a presumption that the Defendant is right unless proven otherwise.

    What??

    The stand your ground law is just says you did not have to retreat before using self defense. Self defense as a reason to use deadly force is always allowed. In your case above, if the new bill passes, the prosecutor must be able to prove it was not self defense if the defendant asks for a stand your ground hearing.

    Under current law, The defendant has to prove he acted in self defense. He is presumed guilty at the stand your ground hearing. The defendant would be taken to trial, still use the self defense plea and be found not guilty. The prosecutor, at that time must prove it was not self defense. The burden at the trial shifts to the prosecutor.

    The new law changes nothing except how much the prosecution and defense spends to prove the same thing. The burden of proof is the prosecutors at the stand your ground hearing as it is at trial.

    Why would the defendant be considered guilty at the stand your ground hearing when he would not be at trial?

    Also, if there is no other evidence to prove guilt, how could a lying defendant be found guilty at trial if he claims self defense?

    Lastly, in your scenario, ballistics could prove the distance the shooter was from the victim. The shooter would have to prove he was in fear of his life from an unarmed woman unless she had the gun in her hand. Why would she attack a man in an alley. There could be lots of evidence to prove it was not self defense. Video and eye witness accounts are not the sole method of proof. It does make the prosecutors job harder, but it would also stop a lot of publicity seeking prosecutors going after legitimate self defense cases and costing victims $1000 to prove they were in the right.

    Mini Mart Magnate

  • treemanjohntreemanjohn Posts: 3,863 Captain
    We’re like the piggy bank that everybody is robbing, and that ends President Trump
  • MRichardsonMRichardson Posts: 9,309 Admiral
    Ya'll can go around and around forever on this crap but in the end,
    it depends on what the cops, State Attorney's office and the jury decide.
    And every case, and jury, is different.
    I have never seen live bones, but I know that they are often used by rich people to decorate the interior.
  • mustang190mustang190 Posts: 10,104 AG
    Better to be judged by 12 than carried by 6.
    2013 Pathfinder 22 TE , 150 Yamaha,
  • Florida BullfrogFlorida Bullfrog Posts: 2,631 Captain
    cadman wrote: »
    What??

    The stand your ground law is just says you did not have to retreat before using self defense. Self defense as a reason to use deadly force is always allowed.

    Stand Your Ground says a lot more than that.

    Self defense has existed in Florida as a defense to a violent crime well before Stand Your Ground was law. Self-defense has its origins from common law (judge-made law that comes from decided cases with written opinions). Self-defense if a form of affirmative defense that a person can raise to a jury. An affirmative defense admits the charges, but claims that the crime should be excused. When an affirmative defense is asserted, the Defendant always has some sort of burden to meet. That burden can vary depending on the kind of affirmative defense asserted. For example, if a Defendant claims insanity, he must prove his insanity at the time of the offense by clear and convincing evidence. Once a Defendant meets whatever the burden is for his particular affirmative defense, the burden shifts back to the State. All affirmative defenses work that way and have worked that way for generations.

    Stand Your Ground is different because when Stand Your Ground is asserted, the question isn't whether a jury thinks you've acted in self defense, but whether you have immunity from prosecution that stops the case from ever going to a jury. Immunity means complete protection from prosecution. Immunity is not an affirmative defense. It is a complete bar from taking a case to a jury. See the statute:

    776.032
    (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened 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 or threatening to use 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 means that if a person is validly protected under Stand Your Ground, prosecution ceases. No jury trial. Instant nolle or dismissal. A jury of one's peers never decides the case. Immunity is very rare in the criminal justice system.

    One of the problems with Stand Your Ground when it first came out is that the statute provided no procedural guidance as to how to determine whether a Defendant should receive immunity under the Stand Your Ground statutes. Therefore, the Courts looked to their own precedence to sort out an immunity claim.

    The common law establishes that whenever a Defendant raises immunity, the burden of proof is on the Defendant to establish immunity by a preponderance of the evidence. Preponderance of the evidence means that its 51% more likely than 49% not likely that immunity should apply. That's a pretty low burden. If the judge decides that a Defendant can show that there's a 51% chance he acted in justified self defense under the Stand Your Ground statute, then the case gets dismissed and the Defendant is immune from jury trial. If the judge decides that the Defendant has not proven by 51% he acted in self defense, the case continues. The Defendant is still free to argue self defense to a jury just as he always has been able to under the affirmative defense of self defense.

    The requirement that the Defendant prove his immunity is not something prosecutors and judges made up for Stand Your Ground. Its always been that way for all claims of immunity.

    Here's the Florida Supreme Court case you can read that explains the above:

    http://www.floridasupremecourt.org/decisions/2015/sc13-2312.pdf

    All of the above applies to Stand Your Ground in its current form, not in what it might be later.

    If the law changes, any Defendant who alleges the basic elements of Stand Your Ground is presumed immune from jury trial unless the State can prove by clear and convincing evidence that the Defendant is not immune. That may not be a problem in cases with lots of forensic evidence. But in basic, non-sex related homicides, that will often not be possible because the only witness who can disprove a claim of self defense in a technical, legal sense (not a jury common-sense type sense) will be dead. More on that shorty.
    cadman wrote: »
    Under current law, The defendant has to prove he acted in self defense. He is presumed guilty at the stand your ground hearing.

    No, he's not presumed guilty. He's just not presumed entitled to immunity just because he asks for it. Immunity is MUCH different than being presumed innocent. All people are presumed innocent as they're brought into trial. A person who is IMMUNE cannot be brought to trial at all.
    cadman wrote: »
    Why would the defendant be considered guilty at the stand your ground hearing when he would not be at trial?

    Again, Stand Your Ground confers immunity and the hearing does not interfer with the presumption of innocence. The hearing simply doesn't recognize a presumption of immunity. Why should a person be automatically presumed immune from trial just because they say they should be? Asserting that a person should be presumed immune from trial in a violent crime is really quite bizarre and alien to our legal system that's built around the veneration of juries as triers of fact. If a person is going to be immune from being taken before a jury of their peers, shouldn't they have to at least make some showing that they get a special pass from being tried? What violent criminal isn't going to yell "self-defense/stand-your-ground" if they get an automatic presumption of immunity from jury trial just by claiming such?
    cadman wrote: »
    Also, if there is no other evidence to prove guilt, how could a lying defendant be found guilty at trial if he claims self defense?

    Juries are a lot more freer than a judge to believe or disbelieve whoever they want. Juries generally decide cases like an average human being would, and emotion plays just as much a part as logic.

    Here's how that would work in a case: Let's say your 5'1", 120lb wife is walking to her car from the office building she works at. For some reason, she's parked in a dark alley with no one around and no video cameras. A big 6'1" dude jumps out, points a gun at her, and tells her to take her clothes off. She, rightfully in fear, pulls out an ink pen and stabs him in the arm. He then shoots her at point blank range and kills her. He then walks out the alley with the gun in his waistband, and before he can get anywhere a LEO who heard the shot apprehends him. He claims self-defense, that she attacked him at close range with a pen so he shot her. He of course doesn't admit at any time that he tried to **** her or pulled his gun on her. Remember, there are no witnesses to the crime. There's no evidence that he told her to take her clothes off or pointed the gun at her. The only person who can testify to that, besides the Defendant, is now dead.

    Let's pretend we go to a stand your ground hearing under the current law. The Defendant has to establish by 51% that he was acting in self defense. The State's theory of the case is that he attacked her first and she stabbed him in self defense, although they are only basing that theory on common sense. She's a tiny woman and it just doesn't seem to make sense that she would attack him. The Judge can look at the facts and determine that the State's theory is just as likely as the Defendant's. Maybe he attacked her. Maybe she attacked him. The only evidence comes from the Defendant's testimony. The Judge would normally be obligated to otherwise take the Defendant at his word if there's nothing that directly contradicts the Defendant (and her size difference isn't a contradiction for these purposes, for reasons I'll explain below). But the burden of proof is on the Defendant, not the State. And its so close. So it would be easy for the judge acting on his gut feeling to say that the Defendant just quite hasn't met that 51% threshold but instead its more like 50/50 likely either way. Therefore the Judge determines the Defendant hasn't met his burden for immunity and the jury gets to decide the case. At trial, the Defendant asserted his self-defense argument. He had to take the stand in order to do so, because his story is hearsay otherwise. When he took the stand, that opened the door for the jury to learn he's a 5 time convicted felon (because a person's criminal history can't come in unless they take the stand, and even then what can come in is limited to the number of felony and crimes of dishonesty convictions). They decided he wasn't credible, that it didn't make sense that this petit little woman would attack this big scary looking dude for no reason, and they convict. Common sense won the day.

    So let's change that scenario to what Stand Your Ground might become if the new law passes. The new law changes the burden at the immunity hearing from the Defendant to the State and changes the amount of proof from 51% to "clear and convincing evidence". That's just a step below beyond all reasonable doubt.

    Same facts as above but under the new law. At the Stand Your Ground immunity hearing, it won't be enough for the State to simply show that the State's theory is just as likely as the Defendant's. The presumption will be that the Defendant is telling the truth unless the State can disprove the Defendant's word by clear and convincing evidence. Now under this change, the judge can't just fudge it and determine the Defendant hasn't met his burden. The Defendant now has no burden. And now the State has no way to disprove the Defendant's theory that she attacked him. Simply pointing out that she's a tiny woman with no reason to attack isn't enough. People do crazy things for no reason every day. The State needs something more to prove by "clear and convincing" evidence that the Defendant was not attacked first by the victim. On the above facts, it cannot be done. Defendant walks, immune from jury trial.
    cadman wrote: »
    Lastly, in your scenario, ballistics could prove the distance the shooter was from the victim.

    Any realistic distance by which a handgun is used out to several paces could be consistent with self defense whether self-defense was realistically justified or not. The only time distance is going to make a difference would be if the Defendant stated that the person was on top of them and in fact the person was 10 paces away. That would be the Defendant caught in a lie. But the Defendant would have no burden under the new law anyhow. Would simply showing the Defendant was incorrect about the distance of the shot be enough? How do you prove the Defendant simply didn't get the facts wrong due to the stress of the situation? As it is, many real life homicides are going to occur at close range whether the shooter was justified or not. Range itself is not going to disprove a claim of self defense most of the time.
    cadman wrote: »
    The shooter would have to prove he was in fear of his life from an unarmed woman unless she had the gun in her hand.

    Under the current law, yes. The shooter would have to prove that he's 51% likely in fear of his life from an unarmed woman before immunity would apply, and if immunity doesn't apply, he'd have to convince the jury that he was in fear. But if the law changes, he doesn't have to prove anything except make the assertion. He'll be presumed right unless the State can show by clear and convincing evidence he isn't. How is the State supposed to prove with clear and convincing evidence he wasn't reasonably afraid?
    cadman wrote: »
    Why would she attack a man in an alley.

    That's a common sense question that a juror can ask at trial and that a judge can ask now in an immunity hearing that the judge won't get to ask if the law changes. Because to ask that question is to put the burden on the Defendant. He won't have to prove anything if the law changes. If the law changes, the Defendant doesn't have to answer why she would attack. Under the new law (if it passes), the assertion that she attacked him is true if the Defendant says it is, unless the State can prove otherwise by clear and convincing evidence.

    You asking that question is instructive. It shows that on a common sense level, you and most people have a tendency to believe a Defendant should have to prove something if he's going to claim he was attacked. There should be some sort of common sense way to sort the likelihood of the claim. The immunity hearing is supposed to be that chance to sort out the validity of the claim. And its only a 51% burden in its current form.
    cadman wrote: »
    There could be lots of evidence to prove it was not self defense. Video and eye witness accounts are not the sole method of proof.

    There will be some evidence in some cases that will defeat a Defendant's claim of self defense at an immunity hearing with clear and convincing evidence. But you'll find that in most homicides, that evidence won't be there. Most homicides in central and north Florida aren't instances of predators attacking law-abiding citizens. Most homicides around here are thug on thug type crimes where one thug kills another over drugs or insults, where thug A ambushes thug B in the hood and guns him down at point blank range. There may not be witnesses, and if there are, they won't talk. The vast majority of current Stand Your Ground claims come up in those sorts of cases. The cases get thrown out in a Stand Your Ground hearing about half the time, which is what you'd expect when the burden of proof is around 51%. Sometimes there's going to be just enough evidence on the Defendant's side to keep it from a jury. But generally if all the Defendant has is his word alone and the State has something to hang their hat on that contradicts the Defendant's word, that can be enough to get it to a jury. Which is how it should be. Juries should be deciding close cases. Where the burden is now, its rare that "thug" on "innocent citizen-type" gets barred from prosecution because of Stand Your Ground. In fact I know of no instances of such. I do know of several instances of unjustified homicides where thug A killed thug B over drugs or turf have been turned lose because of Stand Your Ground in its current form. If this change happens so that the Defendant's word counts as true unless proven otherwise by a high burden, more thug on citizen type crime is going to have to be excused because evidence that a jury would convict on won't be enough in a robotic Stand Your Ground hearing where the Defendant is presumed immune.
    cadman wrote: »
    It does make the prosecutors job harder, but it would also stop a lot of publicity seeking prosecutors going after legitimate self defense cases and costing victims $1000 to prove they were in the right.

    I don't think that happens much in Florida. I'm only aware of the Zimmerman case, and I think that was a travesty that the case was every prosecuted. I have no idea whether Zimmerman was really attacked by Martin or not. But by default there's a reasonable doubt built into that case and it should never have been brought. However, when one tries to change the system because of one bad case, it ends up having all sorts of unintended consequences.

    I personally like Stand Your Ground as it is. Sometimes it lets thugs go who kill other thugs, but so be it.

    I just checked and it appears the amendment to Stand Your Ground died in committee mid March. At least the Senate Bill I'm aware of. I'm not sure whether there's a parallel bill still in circulation.
  • stc1993stc1993 Albany, GA Carrabelle, FLPosts: 6,115 Admiral
  • JohnnyBanditJohnnyBandit Posts: 8,305 Admiral
    AC Man wrote: »
    I've always wondered about this. Case # 1. You come around the corner down town and there is a guy beating the life out of a woman with a tire iron. He does not stop when you give the command to stop. Are you legally allowed to shoot?

    Case # 2. You get in a fist fight, it may be over nothing, but you may be getting your **** kicked. Can you pull a gun and shoot the guy.

    I ask because I have read about both cases but never heard an answer. Both intriguing because firing my weapon would be a tuff decission. Don't know that I could do it. Know a guy that shot and killed his business partner in a drunken fight. He got off but was never the same

    So my question is not about morales but is it legal?

    But the correct answer is "it depends"....

    Scenario 1) you come around the corner and walk into the guy beating down the woman... You have no idea what is going on... The woman getting beat down, might have stabbed his wife or kid to death and their body is laying around the next corner. You shoot the guy, you just shot a man protecting his family.... So he ignored your commands... You are not the police. It would not be out of character for a man protecting what he loves the most... to zone out and go over board.

    Scenario 2) Same thing.... It depends.... Did you start it? are you a willing participant? Or were you just trying to defend yourself?
  • Florida BullfrogFlorida Bullfrog Posts: 2,631 Captain
    I've found a parallel bill that's still in circulation:

    https://www.flsenate.gov/Session/Bill/2017/0128

    Here's how the relevant portion reads:

    (4) In a criminal prosecution, a defendant may file a pretrial motion claiming the right to the immunity from
    prosecution set forth in subsection (1). The motion must clearly state the reasons that the defendant is immune and allege the facts on which the claim of immunity is based. The court shall grant the motion after a pretrial hearing unless the state proves beyond a reasonable doubt that the defendant is not immune.


    The burden of proof has been changed from "clear and convincing evidence" to "beyond a reasonable doubt." That's the highest burden under the law.

    Think about what that's saying. That isn't saying that a Defendant is presumed innocent unless proven guilty beyond a reasonable doubt. That's saying that a Defendant is presumed immune from jury trial unless proven beyond a reasonable doubt. That means that every criminal case where a Defendant is charged with a crime of violence (because ALL criminals charged with a violent crime will assert the claim of immunity, they have no incentive not to and nothing to prove), they must be tried TWICE. First by the judge to see if the presumption of immunity is rebutted. Then tried a second time by the jury to see if the presumption of innocence is rebutted.

    Well that's just ridiculous. Enjoy the consequences.
  • JohnnyBanditJohnnyBandit Posts: 8,305 Admiral
    But the correct answer is "it depends"....

    Scenario 1) you come around the corner and walk into the guy beating down the woman... You have no idea what is going on... The woman getting beat down, might have stabbed his wife or kid to death and their body is laying around the next corner. You shoot the guy, you just shot a man protecting his family.... So he ignored your commands... You are not the police. It would not be out of character for a man protecting what he loves the most... to zone out and go over board.

    Scenario 2) Same thing.... It depends.... Did you start it? are you a willing participant? Or were you just trying to defend yourself?

    To clarify things....

    In scenario number one.... I would err on the side of caution that the woman was being unjustly attacked.... Depending on the situation..... I might shoot him but if he is focused on the woman and ignoring me, I might clunk him good with my Asp... ( I most often carry both an Asp and a knife in addition to a firearm. I am having a double edged custom boon knife made right now. Although I am not carrying it in my boot. ) He might be more inclined to be compliant to my demands if I break his collar bone with the Asp..... OR if he looks TOUGH... I may klonk him upside the head or break his nose for him. If I do not think the Asp would work on him or I could beat him with the Asp, I would shoot him..

    In scenario number two.... I would shoot, use my knife or my asp depending on what I deemed the best at the moment. I am not going to start something. I will say what I think.... I am NOT going to back down to someone that is being a verbal bully... But I do not like hassles in my life... And if you hurt or kill someone in self defense... Even when you are right.... It will create a big hassle in your life... But I at this point in my life, given my health issues I am dealing with..... I am not going to allow someone to hit me.... A split lip, broken nose, or even a black eye could be life threatening to me.... I came down with a RARE auto immune disorder a little over a year ago... My immune system decided my platelets were a foreign body like a virus... and started killing them.... I am stable at the moment but still have less than half (about 30 percent) of the number of platelets an adult male should have. Sometimes I am worse.... I have had less that ONE percent of the platelets I should have at times.... At times I have been in danger of spontaneous internal hemorrhage...... I am not just in danger of thinks like a bleeding broken nose, or a split lip... Internal bruising from taking body punches are probably more dangerous and MORE difficult for doctors to get control of.... IF someone wrapped me in the nose.... They can give me a platelet transfusion in the ER, and there are other treatments they can do... But depending on where my platelet counts are, the question is, can I get to the ER before I bleed out....... No one is punching me...

    Here is the thing, I have carried since the early 1990's... I will use my gun if I have to... If I was not confident of that... I would not carry... But you CAN use less than lethal weapons for self defense... Both in defense of yourself and others....
  • cadmancadman Home of the Gators Posts: 28,411 AG
    Here's how that would work in a case: Let's say your 5'1", 120lb wife is walking to her car from the office building she works at. For some reason, she's parked in a dark alley with no one around and no video cameras. A big 6'1" dude jumps out, points a gun at her, and tells her to take her clothes off. She, rightfully in fear, pulls out an ink pen and stabs him in the arm. He then shoots her at point blank range and kills her. He then walks out the alley with the gun in his waistband, and before he can get anywhere a LEO who heard the shot apprehends him. He claims self-defense, that she attacked him at close range with a pen so he shot her. He of course doesn't admit at any time that he tried to **** her or pulled his gun on her. Remember, there are no witnesses to the crime. There's no evidence that he told her to take her clothes off or pointed the gun at her. The only person who can testify to that, besides the Defendant, is now dead.

    Let's pretend we go to a stand your ground hearing under the current law. The Defendant has to establish by 51% that he was acting in self defense. The State's theory of the case is that he attacked her first and she stabbed him in self defense, although they are only basing that theory on common sense. She's a tiny woman and it just doesn't seem to make sense that she would attack him. The Judge can look at the facts and determine that the State's theory is just as likely as the Defendant's. Maybe he attacked her. Maybe she attacked him. The only evidence comes from the Defendant's testimony. The Judge would normally be obligated to otherwise take the Defendant at his word if there's nothing that directly contradicts the Defendant (and her size difference isn't a contradiction for these purposes, for reasons I'll explain below). But the burden of proof is on the Defendant, not the State. And its so close. So it would be easy for the judge acting on his gut feeling to say that the Defendant just quite hasn't met that 51% threshold but instead its more like 50/50 likely either way. Therefore the Judge determines the Defendant hasn't met his burden for immunity and the jury gets to decide the case. At trial, the Defendant asserted his self-defense argument. He had to take the stand in order to do so, because his story is hearsay otherwise. When he took the stand, that opened the door for the jury to learn he's a 5 time convicted felon (because a person's criminal history can't come in unless they take the stand, and even then what can come in is limited to the number of felony and crimes of dishonesty convictions). They decided he wasn't credible, that it didn't make sense that this petit little woman would attack this big scary looking dude for no reason, and they convict. Common sense won the day.

    So let's change that scenario to what Stand Your Ground might become if the new law passes. The new law changes the burden at the immunity hearing from the Defendant to the State and changes the amount of proof from 51% to "clear and convincing evidence". That's just a step below beyond all reasonable doubt.

    Same facts as above but under the new law. At the Stand Your Ground immunity hearing, it won't be enough for the State to simply show that the State's theory is just as likely as the Defendant's. The presumption will be that the Defendant is telling the truth unless the State can disprove the Defendant's word by clear and convincing evidence. Now under this change, the judge can't just fudge it and determine the Defendant hasn't met his burden. The Defendant now has no burden. And now the State has no way to disprove the Defendant's theory that she attacked him. Simply pointing out that she's a tiny woman with no reason to attack isn't enough. People do crazy things for no reason every day. The State needs something more to prove by "clear and convincing" evidence that the Defendant was not attacked first by the victim. On the above facts, it cannot be done. Defendant walks, immune from jury trial.



    Any realistic distance by which a handgun is used out to several paces could be consistent with self defense whether self-defense was realistically justified or not. The only time distance is going to make a difference would be if the Defendant stated that the person was on top of them and in fact the person was 10 paces away. That would be the Defendant caught in a lie. But the Defendant would have no burden under the new law anyhow. Would simply showing the Defendant was incorrect about the distance of the shot be enough? How do you prove the Defendant simply didn't get the facts wrong due to the stress of the situation? As it is, many real life homicides are going to occur at close range whether the shooter was justified or not. Range itself is not going to disprove a claim of self defense most of the time.



    Under the current law, yes. The shooter would have to prove that he's 51% likely in fear of his life from an unarmed woman before immunity would apply, and if immunity doesn't apply, he'd have to convince the jury that he was in fear. But if the law changes, he doesn't have to prove anything except make the assertion. He'll be presumed right unless the State can show by clear and convincing evidence he isn't. How is the State supposed to prove with clear and convincing evidence he wasn't reasonably afraid?



    That's a common sense question that a juror can ask at trial and that a judge can ask now in an immunity hearing that the judge won't get to ask if the law changes. Because to ask that question is to put the burden on the Defendant. He won't have to prove anything if the law changes. If the law changes, the Defendant doesn't have to answer why she would attack. Under the new law (if it passes), the assertion that she attacked him is true if the Defendant says it is, unless the State can prove otherwise by clear and convincing evidence.

    You asking that question is instructive. It shows that on a common sense level, you and most people have a tendency to believe a Defendant should have to prove something if he's going to claim he was attacked. There should be some sort of common sense way to sort the likelihood of the claim. The immunity hearing is supposed to be that chance to sort out the validity of the claim. And its only a 51% burden in its current form.



    There will be some evidence in some cases that will defeat a Defendant's claim of self defense at an immunity hearing with clear and convincing evidence. But you'll find that in most homicides, that evidence won't be there. Most homicides in central and north Florida aren't instances of predators attacking law-abiding citizens. Most homicides around here are thug on thug type crimes where one thug kills another over drugs or insults, where thug A ambushes thug B in the hood and guns him down at point blank range. There may not be witnesses, and if there are, they won't talk. The vast majority of current Stand Your Ground claims come up in those sorts of cases. The cases get thrown out in a Stand Your Ground hearing about half the time, which is what you'd expect when the burden of proof is around 51%. Sometimes there's going to be just enough evidence on the Defendant's side to keep it from a jury. But generally if all the Defendant has is his word alone and the State has something to hang their hat on that contradicts the Defendant's word, that can be enough to get it to a jury. Which is how it should be. Juries should be deciding close cases. Where the burden is now, its rare that "thug" on "innocent citizen-type" gets barred from prosecution because of Stand Your Ground. In fact I know of no instances of such. I do know of several instances of unjustified homicides where thug A killed thug B over drugs or turf have been turned lose because of Stand Your Ground in its current form. If this change happens so that the Defendant's word counts as true unless proven otherwise by a high burden, more thug on citizen type crime is going to have to be excused because evidence that a jury would convict on won't be enough in a robotic Stand Your Ground hearing where the Defendant is presumed immune.



    I don't think that happens much in Florida. I'm only aware of the Zimmerman case, and I think that was a travesty that the case was every prosecuted. I have no idea whether Zimmerman was really attacked by Martin or not. But by default there's a reasonable doubt built into that case and it should never have been brought. However, when one tries to change the system because of one bad case, it ends up having all sorts of unintended consequences.

    I personally like Stand Your Ground as it is. Sometimes it lets thugs go who kill other thugs, but so be it.

    I just checked and it appears the amendment to Stand Your Ground died in committee mid March. At least the Senate Bill I'm aware of. I'm not sure whether there's a parallel bill still in circulation.

    Let us take your example. Under current law he would likely fail at the stand your ground hearing. However, at trial, what would be different that would convict him. As you said at stand your ground , it is 51%. At a trial, where he claims self defense and there is no evidence to prove otherwise, how is he convicted. What evidence would be presented at trial to prove beyond a reasonable doubt he was guilty.

    How is "clear and convincing evidence" beyond all reasonable doubt. I doubt a prosecutor could make a criminal conviction without clear and convincing evidence. Heck, in the Zimmerman trial and the Casey Anthony trial and the O.J. trial there was lots of clear and convincing evidence. Yet the prosecutor in each one of these failed to convince a jury. I would bet a judge would have convicted in at one of them.

    Edit: I noticed in your example the guy was a five time convicted felon. I think that would nullify a stand your ground hearing since he had no lawful right to be there with a gun. A felon can not possess a handgun in Florida.

    Mini Mart Magnate

  • mustang190mustang190 Posts: 10,104 AG
    And to think some wasted their time and money going to law school!
    All they had to do was log into FS forums!
    Wasn't chubasco the law expert here at one time??:dance
    2013 Pathfinder 22 TE , 150 Yamaha,
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