Two Scenarios On The Right To Shoot?

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  • Florida BullfrogFlorida Bullfrog Posts: 2,133 Captain
    cadman wrote: »
    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.

    The jurors will be given an instruction that they are free to accept or disregard any evidence they want. All that matters at the end of the day is that they are convinced beyond a reasonable doubt and that they are basing their decision solely on the evidence presented. The jurors can simply size up the Defendant, decide he's a liar and a scary, violent-looking dude, and convict him simply on the grounds that the State's theory of events is the only theory that makes sense to them. They're free to completely reject the Defendant's version of events even if his version is the only "eyewitness" testimony presented. They don't have to add up the evidence like a robot and make decisions based on a predictable formula. They're just a panel of 6 or 12 normal people using their common sense to decide whether the evidence adds up. They may very well find that a petit, dead, clean-cut, woman killed in an alleyway by a 5 time convicted felon who's a big, scary looking dude, speaks for itself enough convict the guy even though he's claiming self-defense and he was in fact stabbed.

    A judge at a non-jury evidentary hearing, where his findings of fact are subject to appellate review in a way juror's private deliberations are not, is more obligated to make rulings like a robot or computer program. He won't be a free to rule on his gut feelings like a jury is. If he doesn't believe the Defendant, he's going to need to point to evidence on the record why he doesn't. He can validly say the Defendant is a 5 time convicted felon and isn't credible. That could be enough to hold the Defendant under that 51% threshold where the law is right now. But the Judge is not going to be able to say with a straight face that he finds the Defendant isn't immune "beyond a reasonable doubt" just because the woman is tiny and clean cut and doesn't seem likely to attack the Defendant. It won't be up to the Defendant to prove she attacked first. It will be up to the State to prove she didn't. As where a jury can simply just decide that she didn't attack first because it doesn't make sense, the Judge can't make that common sense finding. He will have to actually have some sort of real evidence that the Defendant attacked first or else he won't be able to disprove the Defendant's claim that she was the aggressor.

    The difference in outcomes is primarily the difference between a judge vs. citizen jurors being the triers of fact. Jurors are going to convict more people of a serious crime than a judge will.
    cadman wrote: »
    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.

    O.J., probably. Anthony, unknown (there were actually problems with that case in terms of the evidence the State had and whether it could REALLY be proven beyond a reasonable doubt that she was guilty). Zimmerman, probably yes, because it would have been a political conviction instead of a "real" conviction. All JMO.

    Its unknown really what the difference is between "clear and convincing" and "beyond a reasonable doubt." The Courts have never given a concrete definition. All we know is that "clear and convincing" is something less than "beyond a reasonable doubt." Remember the new Stand Your Ground bill that is still alive has been amended from "clear and convincing" evidence to "beyond a reasonable doubt."

    Because "clear and convincing" is something less than "beyond a reasonable doubt", then yes the State should be able to prove someone is guilty by "clear and convincing" evidence if they can also prove they are guilty "beyond a reasonable doubt." But again, remember that the State Your Ground hearing isn't determining whether the State is proving guilt. Its determining whether immunity exists, and if the law changes, immunity will be presumed.

    Here's another way I can put it. If Stand Your Ground changes so that Defendant's are presumed immune unless proven not immune beyond a reasonable doubt, then there WILL be instances where there would be enough evidence to convict of guilt at trial, but not enough evidence to overcome a presumption of immunity, both under the same standard and with the same evidence. Because the presumption of immunity is different and harder to overcome than a presumption of innocence.
    cadman wrote: »
    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.

    It wouldn't for two reasons. First, the Defendant would still have a right to use deadly force to defend himself under Stand Your Ground, so whether the homicide is justified is a separate question from whether the Defendant could be convicted for possession of a firearm by a convicted felon. It is completely possible that the Defendant could be found immune for prosecution of the homicide for Stand Your Ground, and then turn around and separately be convicted for possession of a firearm by a convicted felon. There is a provision of Stand Your Ground that says that a person engaged in unlawful activity is not afforded Stand Your Ground immunity. However, Florida case law says that provision doesn't prohibit convicted felons from claiming Stand Your Ground while using a firearm.

    The reason felons can appeal to Stand Your Ground while they possess firearms is because Florida felons have available to them an affirmative defense of necessity for possession of a firearm by a convicted felon. Just like all the other affirmative defenses (of which self defense is one), the Defendant has a burden of proof to establish necessity. He has to prove:

    1) defendant must be in present or imminent peril of death or serious bodily injury or reasonably believe to be in such danger,

    2) defendant must not have intentionally or recklessly placed himself in a situation in which it was probably, and that word should be probable and not probably, so if you will insert an “e” where the “y” is, and to choose a criminal conduct,

    3) the defendant must not have any reasonable legal alternative to possessing the handgun,

    4) the handgun must be made available to the defendant without preconceived design, and

    5) the defendant must give up possession of the handgun as soon as necessity or apparent necessity ends.


    That's lifted from the case law. If the Defendant can make that showing to a jury, his possession of firearm as a felon would be excused.

    Again, that's why it makes perfect sense that a Defendant should have to show something to establish the validity of an affirmative defense. Would it make sense if convicted felons are presumed immune from prosecution every time they find themselves in possession of a firearms because the law is now going to presume a necessity defense in every case where a Defendant simply claims necessity as a justification? What about insanity? Right now, the law presumes all Defendants sane unless they can make a showing that they may have been insane by clear and convincing evidence. Would it be a good idea to change the law so that Defendants are presumed insane in every case unless proven otherwise? Then take it the step further to what Stand Your Ground actually is. Not only would a Defendant be presumed insane in every case, a Defendants are presumed immune from jury trial so a jury can't even decide whether a person is insane or not.

    I can't stress enough the difference between a presumption of innocence and a presumption of immunity. The presumption of innocence means you have to be considered innocent until proven guilty to a jury. The presumption on immunity means that you're completely protected from being taken to a jury trial unless proven not immune to a judge. Creating a blanket presumption of immunity whenever violence is used is really quite bizarre and is a fundamental change in how our legal system works.
  • cadmancadman Home of the Gators Posts: 26,325 AG
    Interesting and I have to admit I would not have believed it except an easy google search brought this up

    http://www.sun-sentinel.com/local/palm-beach/fl-stand-your-ground-dorsey-case-over-20150526-story.html

    I admit, I learned something new. Thank you.

    Mini Mart Magnate

  • mjnmjn Posts: 1,564 Captain
    AC Man wrote: »

    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.

    dnelson wrote: »
    1. Yes
    2. Possibly, but if you instigated the fist fight your out of luck.

    To me this was the jist of the George Zimmerman case. One of my few fears of the widespread carrying of guns. Jerkoffs starting fights they when they know they are packing. If they win the fight great, but if they start losing they can pull out the gun, the whole situation just makes me cringe.

    ....BTW (just for reference) I am for concealed carry/firearms for defense, with every law abiding citizen packing I think crime would be reduced 10 fold. and am 100% for personal protection by force and deadly force if necessary.
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  • pottydocpottydoc The thriving metropolis of Umatilla Posts: 3,079 Captain
    Zimmerman started the fight according to who? I believe his testimony was he was attacked by Travon. Which, by the way, is the only testimony we have.

    And just so you know, I think Zimmerman is an idiot who needs to go hide under a rock someplace.
  • phlatsphilphlatsphil Posts: 14,632 AG
    AC Man wrote: »
    LOL. That's the point. Their is no depends. I spelled it out for you.

    It always depends. My late father retired in 1987 as chief of probation and parole for the State of Virginia. He told me decades ago one guy can shoot a 7/11 clerk and get life. Another guy can shoot a 7/11 clerk and get the death penalty. Yet another guy can shoot a 7/11 clerk and get 25-life.

    Depends on your lawyer and the jury and the judge and the pre-sentence report and the politics du jour.
  • Mister-JrMister-Jr Posts: 27,672 AG
    phlatsphil wrote: »
    It always depends. My late father retired in 1987 as chief of probation and parole for the State of Virginia. He told me decades ago one guy can shoot a 7/11 clerk and get life. Another guy can shoot a 7/11 clerk and get the death penalty. Yet another guy can shoot a 7/11 clerk and get 25-life.

    Depends on your lawyer and the jury and the judge and the pre-sentence report and the politics du jour.

    My late father told me that after serving in WWII he would never pick up a gun again, and he didn't. Personally, I have owned a shotgun, but never anything that could be concealed.
    Vote for the other candidate
  • Mango TangoMango Tango Posts: 2,019 Captain
    Scenario #1 "yes" a life is in danger. You are legally within your rights to render aide up to and including deadly force

    Scenario #2 "no" your ego is danger. Take your as* whipping like a man. Anyone who carries and is not conflict avoidant is a fool.
  • Florida BullfrogFlorida Bullfrog Posts: 2,133 Captain
    cadman wrote: »
    Interesting and I have to admit I would not have believed it except an easy google search brought this up

    http://www.sun-sentinel.com/local/palm-beach/fl-stand-your-ground-dorsey-case-over-20150526-story.html

    I admit, I learned something new. Thank you.

    You're very welcome.
  • mjnmjn Posts: 1,564 Captain
    pottydoc wrote: »
    Zimmerman started the fight according to who? I believe his testimony was he was attacked by Travon. Which, by the way, is the only testimony we have.

    And just so you know, I think Zimmerman is an idiot who needs to go hide under a rock someplace.

    I don't think it was miscarriage of justice or anything. Two idiots collide. I feel nothing for little Travon. I just think Zimmerman was an idiot that followed someone and it backfired on him. If someone was slowly following me while I was walking around I would consider it a threat. I don't believe anything Zim said or says and the one witness for Travon was a joke. If Zim went to jail I would have been happy. thug dead, idiot wanna be cop in jail.


    That being said, I have seen it done without guns. Little guys picking fights when they have a big friend with them. Bar owners kid starting fights at the bars knowing the bouncers have to be on his side, etc

    Scares me ...someone starts a fight, realizes they are in over their head then starts with the "I fear for my life" because they are getting their *** **** in a fight they started. Then some guy minding his own business is in a fight he didn't start and winds up dead with no one accountable.
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  • tankardtankard Posts: 6,760 Admiral
    Like that ******l ex-cop in the movie theater. Starts crap knowing he is armed.

    My somewhat dooshy adopted older brother fits this mold too. Always wanted to be a cop, never got to be one, so he walks around with a high-and-tight haircut, concealed carry at all times (yes licensed) he even has his little 380 in a fanny pack at Christmas, Thanksgiving, etc.

    It is really lame.
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