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I am a general practice lawyer in California who has spent over 44 years pondering and arguing the concept of self defense in some pretty high courts and in advising my clients.  But this is not a technical treatise.  It is a political rant.  The recent murder trial in Florida is moving me to just get off my chest what a rational deadly self-defense law has to be in a civilized America.

My simple rule:  You can’t kill anybody unless you have no other choice.  Oddly, that’s the common law followed in just about every state until recently.  Because, why would anybody want it any other way?

First of all, let’s understand one thing:  No individual has a “right” to choose to kill anyone. If, under our Constitution, our government cannot deprive anyone of life without due process of law, how can government authorize anyone else to do it?  In my view, any law that purports to confer, in advance, an individual right to kill another is unconstitutional.  

But what about this “right” to defend yourself?  Well, why would anyone call it a “right?” Why not see it for what it is?  More fundamental than a right.  More “God given” than any right.  A simple recognition of necessity.  Some things simply can’t be avoided.  You have to do what you have to do.  Some people will find themselves in a dire emergency where they don’t have time or ability to consider or reflect on the “the law.”  They have to act or life will be lost.  There ought to be laws that say their actions are justified (not authorized).  It should never be permission to kill.  It should always only be a defense that you had no choice.

Clients often ask me to tell them when they have the right to use deadly force.  My answer is always simple:  If you have to ask, the answer is no.  If you have to “decide” to kill someone, and that  decision to kill someone depends on your knowledge of the “law,” you have introduced the one element that kills any moral self defense claim – a choice.

So it turns out that the law in the overwhelming number of jurisdictions that follow the common law is simple.  (1) self defense is an affirmative defense that must be raised and proved by the defendant, (2) the defendant must have the actual subjective belief that his life (or another’s life) was in imminent danger, (3) that his belief was objectively reasonable under the circumstances, and that (3) there was no way to avoid the deadly force.  

Jurisdictions (states) may differ on details of when certain facts raise a “presumption” of reasonableness of fear, such as presence of a violent intruder in your home. And there is a general duty to retreat as an alternative to deadly force except in your own home.  

“Wait! You mean to tell me that if I catch some sonovabitch in my living room with my TV in his arms I don’t have to right to shoot him???!!!”  NO!!!  A thousand times: NO!!!  

What the Florida “Stand Your Ground” law does is to eliminate the element of objective necessity.  It not only takes away the duty to avoid conflict but actually implies that withdrawal is dishonorable or cowardly by calling it “retreat” and actually creates conflict over who’s “ground” is being “stood.”  It attempts to confer on an individual the right to kill by choice and in protection of his honor and a place to stand.  That makes him dangerous to those he chooses to fear – or hate – or to those who think they have a right to be in that place too.    

“(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.”

“Retreat?” “Stand your ground?”  These are words of war, not peace.  What kind of person wants to have a “right” to kill if they have a choice?  Unfortunately, I’m pretty sure I know who they are.

Originally posted to legalarray on Mon Feb 24, 2014 at 03:32 PM PST.

Also republished by Shut Down the NRA, Firearms Law and Policy, and Repeal or Amend the Second Amendment (RASA).

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Comment Preferences

  •  Tip Jar (151+ / 0-)
    Recommended by:
    The Termite, aoeu, LilithGardener, Vetwife, ontheleftcoast, jan4insight, JoeEngineer, Gooserock, Cassandra Waites, a2nite, Glen The Plumber, Smoh, FogCityJohn, enhydra lutris, JoanMar, albrt, liberalguy, Rachael7, Mr K, slowbutsure, Aaa T Tudeattack, marina, Assaf, FriendlyNeighbor, TheFern, i saw an old tree today, wilderness voice, Emerson, Chi, GAS, Trendar, wader, kyril, fluffy, eru, CinDan, moviemeister76, Joy of Fishes, Lefty Ladig, TheMeansAreTheEnd, TRPChicago, jamess, deha, Iberian, buckstop, on the cusp, ramara, AJayne, Catesby, jnhobbs, ObamOcala, timewarp, tgrshark13, Lost and Found, Tinfoil Hat, David54, realalaskan, BusyinCA, AdamR510, ChocolateChris, psnyder, rogerdaddy, gfv6800, night cat, zozie, Buckeye Nut Schell, gramofsam1, Raggedy Ann, hubcap, blueoasis, oldpotsmuggler, deben, Shippo1776, sfbob, PsychoSavannah, WakeUpNeo, ORswede, Orcas George, sawgrass727, dull knife, GeorgeXVIII, kurt, Tortmaster, YucatanMan, dskoe, Sandino, myrmecia gulosa, SoCalSal, reasonablegunsplz, nancyjones, MartyM, grollen, Executive Odor, Johnny Nucleo, cautleen, democracy inaction, zeke7237, radarlady, tobendaro, mamamedusa, fcvaguy, Russ Jarmusch, Leslie in KY, LaFeminista, mikeconwell, ivorybill, skod, We Shall Overcome, MKinTN, zerelda, DRo, jrooth, bewild, bdizz, MBNYC, Prof Haley, just another vet, Steven D, pixxer, niteskolar, MKHector, smokeymonkey, papercut, stlsophos, Dodgerdog1, Creosote, mslat27, schumann, BachFan, petulans, Cofcos, ClevelandAttorney, Catte Nappe, ColoTim, cybersaur, Texknight, skeptigal, Mimikatz, nickrud, NYFM, Question Authority, dksbook, Bisbonian, jhb90277, Anika, Penny GC, leeleedee, dotdash2u, JerryNA, Celtic Merlin, bigjacbigjacbigjac

    A right answer to the wrong question is a wrong answer.

    by legalarray on Mon Feb 24, 2014 at 03:32:45 PM PST

  •  Will SYG become a new base line? (20+ / 0-)

    We've seen several states adopt this type of law. And given some states seem so eager to prove they're more "freedom loving" than other states will one of them take it further? How about, "Shoot First, Ask Questions Later", as a doctrine? After all, if you have to take the time to think about your shooting being justified you give the bad guy a chance to kill you first.

    Food processed to be nothing more than simple starches with two dozen flavorings and stabilizers added to make it appear to be food isn't "food". It's "feed" -- what you give to livestock to fatten them up for slaughter.

    by ontheleftcoast on Mon Feb 24, 2014 at 03:49:35 PM PST

  •  "Eliminate the element of objective necessity" (46+ / 0-)

    Thank you for this exceptionally clear and well stated diary.

    What the Florida “Stand Your Ground” law does is to eliminate the element of objective necessity.  It not only takes away the duty to avoid conflict but actually implies that withdrawal is dishonorable or cowardly by calling it “retreat” and actually creates conflict over who’s “ground” is being “stood.”  It attempts to confer on an individual the right to kill by choice and in protection of his honor and a place to stand.  That makes him dangerous to those he chooses to fear – or hate – or to those who think they have a right to be in that place too.    
    IMO the Florida SYG law creates a presumption that the shooter had reasonable fear. What is almost totally lost is the concept of proportionality. Fear of deadly violence is evident in the reaction of the driver who immediately put the car in gear and backed out of there, asap.

    Michael Dunn would have done the same if he was actually afraid for his life.

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Mon Feb 24, 2014 at 03:55:37 PM PST

  •  Thanks, When I (IANAL) Suggested a Deprivation of (16+ / 0-)

    Constitutional rights created by stand your ground a few days ago here, and that as a possible basis for overturning these laws in court, I was roundly laughed at.

    I'm glad to see at least a similar suggestion come from a lawyer.

    I'm dimly recalling some decisions from decades ago that if a homeowner rigged a lethal booby trap to automatically kill intruders, that those were struck down in part over depriving the intruder of one or more Constitutional rights.

    Do you think there's a possible path forward against these SYG laws on that basis?

    Is there a long common law tradition of duty to retreat, maybe back to England, that might serve as a useful principle? Habeas corpus for example isn't spelled out in the Constitution, it's only referred to as some kind of pre-existing principle as I understand it.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Mon Feb 24, 2014 at 03:58:24 PM PST

  •  legalarray - we have had SYG in CA for 100+ years (4+ / 0-)
    Recommended by:
    LilithGardener, GAS, kyril, wader

    It works differently than the FL law, but I think you will find this diary I wrote of interest.

    http://www.dailykos.com/...

    "let's talk about that"

    by VClib on Mon Feb 24, 2014 at 03:59:53 PM PST

    •  What does CA do differently? nt (7+ / 0-)

      "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

      by LilithGardener on Mon Feb 24, 2014 at 04:03:25 PM PST

      [ Parent ]

      •  It limits "stand your ground" to your home or (15+ / 0-)

        a place from which you cannot safely retreat.  In California, you have a basic duty to retreat except in your home.  

        A right answer to the wrong question is a wrong answer.

        by legalarray on Mon Feb 24, 2014 at 04:32:56 PM PST

        [ Parent ]

        •  No duty to retreat in California; one may even (12+ / 0-)

          pursue an assailant, and not just in the home.

          The jury instructions on this subject are clear:

          CALCRIM 505 – Justifiable Homicide: Self-Defense or Defense of Another. (“[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ {insert forcible and atrocious crime}) has passed. This is so even if safety could have been achieved by retreating.]”)

          See also CALCRIM 3470 – Right to Self-Defense or Defense of Another (Non-Homicide). (“[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ {insert crime}) has passed. This is so even if safety could have been achieved by retreating.]”)

          In the home you get a presumption that your life/your loved ones' lives are endangered by the presence of an intruder, armed or not.

          So even though we don't call it SYG in California, it's quite similar.

          Also, it's true that the burden of proving any affirmative defense, like self defense goes, to the defense - however, an affirmative defense is proven by a preponderance of the evidence, not beyond a reasonable doubt.  This is because proving an affirmative defense by a preponderance raises a reasonable doubt, and a reasonable doubt means Not Guilty.

          (IAAL, criminal defense, public defender.)

          •  You can pursue only if necessary. (19+ / 0-)

            To justify pursuit, it has to be necessary to eliminate a threat of death or great bodily injury.  That's an important limitation.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Mon Feb 24, 2014 at 05:04:13 PM PST

            [ Parent ]

          •  Take a look at this case in which I was involved. (8+ / 0-)

            People v. Wright (1985) 39 Cal. 3d 576 [217 Cal. Rptr. 212, 703 P.2d 1106]

            Defendant was outside of his own trailer at night working on his car.  Victim entered his light from darkness and yelled at him "So your the _ who's been bothering my wife.. . .I'm going to kick ass," and disappeared into the darkness.  Defendant went to his trailer, got his gun, looked around his trailer, went out into the street to see if the intruder was there.  He was returning to his trailer when the victim appeared out of the darkness. Defendant fired three shots, killing the stranger.  

            Verdict: first degree murder.  Upheld by the California Supreme Court.  The problem for the jurors:  He unnecessarily  "pursued" the victim.    

            Tragically, it turned out that the victim was only a neighbor there to complain to the manager about a trailer park street light that was sparking and "bothering" his wife's sleep.

            A right answer to the wrong question is a wrong answer.

            by legalarray on Mon Feb 24, 2014 at 06:54:57 PM PST

            [ Parent ]

            •  Sounds like the right result to me. (3+ / 0-)

              Especially if the victim is unarmed.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Mon Feb 24, 2014 at 06:58:36 PM PST

              [ Parent ]

              •  Too few facts, what if this happened in 30 sq feet (0+ / 0-)

                The pitch black. The guy had a shovel or there were things like that everywhere. If I can't get away I am not trying to get beat by a shovel. Granted I'd rather hope I dont have a gun and shoot the guy.

                Subjectivity is pretty objective however this happened. Anyone would think themselves in some zone of danger. How far did he go? How much time.

                If that happened while I seriously hope not in a short time and too dark to tell, well who knows.

                Not saying right or wrong/just why trials can take time.

            •  Legallray- I don't do CrimLaw (0+ / 0-)

              But I kind of shadowed someone early on that if I got in trouble he'd be my guy.

              It was a murder case that got plea bargained and I always thought that it ended up wrong/unfairly, although a perfect Law School question. I suppose J/Cuz.

              Man is a Felon. Man is walking home Xmas Eve around Midnight. Man has a gun (3 years). Man has a Fur Coat (Fake- 12 dollars).

              Man gets accosted by two Thieves. Man gets shot by a 9mm 11 times. Man has a 45. Man shoots one of the thieves (clearly self defense) something like 9 times.

              There is testimony that the "Victim" (thief) was sitting upright against a car or something like that at the end. That the Man now walked up and fired a "kill shot".

              No one knows if the "Victim" was already dead (if I killed you in self defense I assume shooting your dead corpse has the mens rea? but you're dead). No one knows which shot it was maybe it wasn't a shot that killed.

              Now the "murderer" faces First Degree Murder. Was he in the zone of danger? (I've seen westerns if I am shot 11 times I am probably not turning my back).  Etc. Etc.

              Result? Plea Bargained for 4-7. He got 6? He was going to do 3 simply for having a gun (which saved his life). I will never forget the judge saying this is a case where violence didn't solve anything. Well if it was a white guy in the burbs with no rap sheet I am pretty sure it'd be a bit different (what if he didn't have the gun?).

              I guess I also say this as his Attny thought he had a pretty good argument for everything but it's 7 years when you're going away for three v. Life. But this is how subjectivity and objectivity are soo difficult.

              Real life is tougher than law school problems. IMO the guy should not have been on trial.

        •  Stand Your Ground (4+ / 0-)

          in your home is called the Castle Doctrine, and it is a principle of law hundreds of years old.

          Stand Your Ground outside your home, with a duty to retreat is basic self-defense.

          So neither case has anything to do with SYG.

        •  That was the law in Fl until SYG was passed. It's (0+ / 0-)

          called the Castle Doctrine.

      •  I'm not sure but . . . (14+ / 0-)

        under California law, a person invoking what we call "perfect self-defense" (self-defense sufficient to make the killing noncriminal) must possess an actual and objectively reasonable belief he is in danger of imminent harm.  Fear of future harm does not suffice.  In those circumstances, a person claiming self-defense will not have a duty to retreat under California law.  

        If a defendant can produce substantial evidence of such circumstances, then the trial court is required to give an instruction on the issue.  There are a couple of standardized ones on this point, one of which is CALCRIM 3470.  Another is CALJIC 5.50, which states:

        A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of [his] [her] right of self-defense a person may stand [his] [her] ground and defend [himself] [herself] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue [his] [her] assailant until [he] [she] has secured [himself] [herself] from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.
        On the other hand, if the killer is himself the assailant or engaged in "mutual combat," he must attempt to "decline any further struggle before the homicide [is] committed.  (Pen. Code § 197, subd. (3).)

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Mon Feb 24, 2014 at 04:58:57 PM PST

        [ Parent ]

      •  See i love san fran's comment below (3+ / 0-)
        Recommended by:
        GAS, kyril, LilithGardener

        s/he is a public defender in CA.

        "let's talk about that"

        by VClib on Mon Feb 24, 2014 at 05:14:48 PM PST

        [ Parent ]

  •  So if I am in my own home (9+ / 0-)

    and someone is attempting to rape me, I don't have any right of self-defense if I have the alternative of allowing the rape to proceed?

    I was raped and beaten in my home. I put the rapist in jail. But at the time I was living in an urban area. Now I live in a semi-rural area where it takes at least 15 minutes for the county sheriff to arrive in an emergency.

    A lot can happen in 15 minutes.

    •  Only if you are assured the rapist won't kill you. (12+ / 0-)

      As you say, a lot can happen in 15 minutes.  I find it hard to conceive of a set of facts in which a woman is being raped and she can at the same time be certain there's no threat to her life.

      I think you may have a duty to retreat if you can escape from the situation, but if some guy has his hands around your throat, it's a safe bet you're being threatened with deadly force and therefore can meet it with deadly force.

      Did you have some other factual scenario in mind?

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Mon Feb 24, 2014 at 04:27:27 PM PST

      [ Parent ]

      •  I was, in fact, afraid for my life (6+ / 0-)

        when I was raped. I had been chopping vegetables in the kitchen and kept being afraid that the rapist would remember my kitchen knives, which thank the Gods he didn't. While he did beat me, including punching me over and over in the eye, at no time did he have his hands around my neck. And at no time did he remember my knives or, at least, he didn't go for them.

        When I became most afraid, however, was after he left; he came back and tried to break into the house. THAT was when I called 911. I was convinced he was coming to murder me.

        It is really difficult to conceive of a situation where a raped woman who is in the bathroom throwing up as I was is able psychologically to get up and flee the place that is supposed to be her sanctuary and run half naked down the street.

        This state has something called the Castle Doctrine, which is being called a SYG by people opposed to SYG. I am opposed to SYG but I am also opposed to telling people they have a duty to flee their own homes, especially if there is any chance that doing so will put them in danger. I am disabled and cannot run. I need a stick to walk.

        How is a woman allowed to defend herself against a home invasion before she is attacked, because once she is being assaulted, she's not likely to be able to grab anything with which to defend herself? How is she permitted to defend herself when a rapist says "I'd like to poke you", she tells him to leave, and he refuses, grabbing her instead in her own kitchen as she's chopping vegetables? Is she allowed to defend herself with the knife she's holding? Is she allowed to aim for someplace that might be lethal?

        Is she allowed to be armed with a gun inside her home if a man she has invited in is present, presumably waiting for her boyfriend but instead determined to rape the woman? At the time, I didn't have a gun, but if I had had, I almost certainly wouldn't have been armed with it. That wariness came afterward.

        Do you have suggestions for a situation where there are no close neighbors, the house is obscured from the street by trees and surrounded by woods, it is 600 feet from the nearest road, and a woman is home alone with an elderly dog who has few teeth?

        •  At least under California law . . . (8+ / 0-)

          I think you'd have every right to use a knife against a guy who's grabbed you with the intent to rape you.  I can't imagine that there's a court in the nation that wouldn't find that rape constitutes the type of "great bodily injury" giving rise to the right to employ deadly force in self-defense.

          As for any duty to retreat, most states adhere to the castle doctrine, I think, so you wouldn't have a duty to retreat at home.  In addition, defenses like this are heavily fact-dependent, so a woman who's physically unable to retreat would not face the same duty to retreat that, say, a perfectly able-bodied young man would.

          I understand you are speaking from personal experience, and I don't wish to be understood as being insensitive to the issue.  My comments in this diary are directed largely to the legal requirements for invocation of the right to self-defense, and they should be read in that context.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Mon Feb 24, 2014 at 06:44:51 PM PST

          [ Parent ]

        •  I've got a suggestion, shoot the son of a bitch. (4+ / 0-)

          “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

          by ban nock on Mon Feb 24, 2014 at 06:53:41 PM PST

          [ Parent ]

      •  The cops where I live have a saying about their (0+ / 0-)

        own use of deadly force: "It's better to be judged by twelve than carried by six." That's probably applicable in the case described.

    •  Of course you can defend yourslelf against a rape. (14+ / 0-)

      If you are attacked and have (1) subjective actual belief that you are immediately about to be raped, and that deadly [or less] force is necessary, and (2) that subjective actual belief is objectively reasonable under the circumstances as determined by a jury, then you have a legal defense to whatever force was reasonably necessary.  But YOU don't determine what is reasonable.  The jury does.  You only get to "decide" if you are actually in fear of death or great bodily harm (which rape is.)

      Again, you get to decide if you are afraid enough; the jury gets to decide if that fear was real and reasonable.

      A right answer to the wrong question is a wrong answer.

      by legalarray on Mon Feb 24, 2014 at 05:10:12 PM PST

      [ Parent ]

      •  Well written, but the reality of the moment ... (5+ / 0-)

        ... is that you DO the most reasonable thing you can think of under the circumstances at the time.

        Perhaps no hard and fast rule is appropriate, but if an intruder - by definition, unbidden - has entered my home ... I have no place else to go. Retreat is simply not a realistic option. It should not take much more danger - no more than a step towards me, for example, or a word of threat, implicit or otherwise - to allow me to use what force I have at hand, including a Heller gun.

        And Yes, I thereby put my fate at the hands of a prosecutor with discretion, a judge who knows the law and, if necessary,  a jury of my peers.

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Mon Feb 24, 2014 at 06:24:52 PM PST

        [ Parent ]

        •  Yes, and then a jury determines whether what you (7+ / 0-)

          did was reasonable. I don't see any reason why that is not a reasonable approach. It seems a lot more logical than the "I was afraid" justification we are seeing in so many states. The duty to retreat outside of one's home should not have been recklessly removed.

          I won't believe corporations are people until Texas executes one. Leo Gerard.

          by tgrshark13 on Mon Feb 24, 2014 at 06:44:58 PM PST

          [ Parent ]

        •  As me and my lawyer brothers used to say: (3+ / 0-)

          "If you have to kill someone in self defense, you are one of life's losers."

          Yes, of course, you always submit yourself to the discretion of a prosecutor if you kill someone.  but that's not a consideration in deciding what to do -- is it?

          A right answer to the wrong question is a wrong answer.

          by legalarray on Mon Feb 24, 2014 at 07:01:07 PM PST

          [ Parent ]

          •  It's you - at the time and in the situation. (2+ / 0-)
            Recommended by:
            Glen The Plumber, LilithGardener

            The prosecutor and everything else comes later.

            But I don't agree that self-defense, with a homicide at stake or not, equates to a loser. The old common law was too harsh on the home owner. That's why it's been changed.

            I don't agree with any aspect of SYG. I also don't agree with public carry, at least not in my jurisdiction, because .. well, it's in public and restraint there - non-confrontation - rises to a very high level of importance. In one's home, where no intruder has a right to be, some restraint may be called for ... to be sure it's not a wayward child returning home or a spouse with a besotted friend. But there is a limit to how much sweet reason needs to be brought to bear to understand the actions of the unbidden intruder.

            And of course, as in every other situation, someone else is going to decide the reasonableness of what happens next.

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Mon Feb 24, 2014 at 07:58:14 PM PST

            [ Parent ]

            •  One night my brother got drunk. (3+ / 0-)

              He couldn't safely drive to his home, so he went to my house and came in through a side door.  I had a revolver on my night stand.  The first I knew he was there was when I saw a shadowy figure standing over my bed mumbling something about sorry, place to crash.  Really scary.  

              I didn't shoot him.  Thank you God.

              A right answer to the wrong question is a wrong answer.

              by legalarray on Tue Feb 25, 2014 at 07:02:35 AM PST

              [ Parent ]

              •  Agreed. If you have a loaded gun at hand, ... (2+ / 0-)
                Recommended by:
                Glen The Plumber, LilithGardener

                ... I think your duty to act reasonably is heightened.

                If I could write the law, I'd make the carrying of a firearm into a presumption - rebuttable, if course - of premeditation. If you are carrying a weapon, an inherently dangerous instrument when used as designed, it seems to me reasonable to presume that you do intend to use it.

                Of course, you can explain why you did what you did. That explanation is not solely subjective. It should be judged by what a reasonable person would have done under the circumstances. But just like law enforcement officers are trained to do, civilian gun bearers have an obligation to defuse confrontations precisely because they can turn out to be deadly to participants and passers by.

                As for your brother unexpectedly appearing in your house, you obviously assigned to yourself a much more restrained and rational role than your brother exhibited. He's a lucky guy!

                2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                by TRPChicago on Tue Feb 25, 2014 at 07:56:16 AM PST

                [ Parent ]

    •  Thats quick service (3+ / 0-)

      Where I live it would be 45 minutes at least, longer if it wasn't violent.
      There's 2 deputies on patrol in my county most nights, a county bigger than Rhode Island and that's good coverage. In lots of Oregon counties, if you call 911 in the early morning you get a recording, 18/6 coverage. You may have to talk the sheriff himself out of bed and I'm not kidding about that

      Happy just to be alive

      by exlrrp on Mon Feb 24, 2014 at 05:17:29 PM PST

      [ Parent ]

    •  Castle Doctrine (1+ / 0-)
      Recommended by:
      GoGoGoEverton

      will protect you in most states if you use lethal force in the event of an attack in your own home.

  •  The NRA have convinced many of the majority (5+ / 0-)

    Race because the 27 words of death in the 2nd allow it. There are a lot of Dunns & Zimmermans out there. They have permission to exterminate mostly POC.

    Whites exterminated the natives; American bloodlust must be satisfied because it is ongoing.

    nosotros no somos estúpidos

    by a2nite on Mon Feb 24, 2014 at 04:11:12 PM PST

  •  Fear: You're Soaking In It! (13+ / 0-)

    The right wing is good and dutifully terrified. This is what happens when your diet has too much xenophobia in it. You're pantsbrowningly enhorrored of everything.

    The stand your ground laws are a response to the belief that violent crime is trending up (it isn't), that black on white crime is prevalent (it's not), and that it's only a matter of time before you find yourself in a situation where the only thing that will save your life is a loaded gun (absurd). There are no facts in a 10 mile radius of this fear, but that makes little difference.

    I often wonder what it's like to wake up and before your lips even hit the rim on your first mug of coffee you find yourself grappling with the choking fear that God is growing angrier and smitier about the nation's acceptance of homosexuality in the NFL. Or the fear that something horrible is being planned in a mosque that some gumsmacking central planner forgot to deny zoning. Or worse still, the fear that Obama is coming to take away the one thing that makes them feel like they have a shred of control and power.

    •  Plenty of progressives, (10+ / 0-)

      myself included, own guns and carry guns for self defense.  I am not afraid, but I am prepared.  We will never be able to discuss gun issues with those insulting caricatures of who has and carries guns.

      I fight for the Constitution every day, for the indigent accused, and I fight hard.  

      I also own hand guns, assault rifles, shotguns and I have a CCW permit.  I train regularly and I shoot in competitions.  

      I don't recognize myself in your description.

      (I am a petite 50-something female and I go a lot of places most upper middle class people cannot even imagine being. Those are actual facts.   I think carrying a concealed weapon is a reasonable choice for me in those situations.  YMMV.)

      •  If you have a reason to fear for your safety, (1+ / 0-)
        Recommended by:
        FogCityJohn

        I can see rationale for carrying deadly weaponry.

        But, that's still fear-driven, IMHO.  Unless, by "prepared", you mean to say that people you see or are near often are often armed and/or threatening to a person of your bearing.

        "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

        by wader on Mon Feb 24, 2014 at 05:56:36 PM PST

        [ Parent ]

      •  If the shoe doesn't fit . . . (6+ / 0-)

        you need not wear it.

        That doesn't change the fact that a good many people buy guns based on irrational fears -- fears of black and brown people, fear of Obama the gun-grabber, fear of a tyrannical government they'll have to resist and/or overthrow by force.

        It also doesn't change the fact that things like racism play a huge role in what kinds of fear people will deem "reasonable."  It'd be nice to think that people are arming themselves based on statistical reality and after calm, cool reflection, but unfortunately that's not how it works.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Mon Feb 24, 2014 at 07:07:34 PM PST

        [ Parent ]

        •  Lots of people drink to escape (1+ / 0-)
          Recommended by:
          gerrilea

          Should we ban all alcohol because not everyone is sipping red wine while listening to classical amongst sophisticated conversation?

          In short, do rights cease to exist because people don't use their freedom the way you say they should?

          •  You mean by killing innocent black kids? (1+ / 0-)
            Recommended by:
            Glen The Plumber

            Yeah, call me an authoritarian, but I don't think anything gives you the right to do that.  Not the Second Amendment, not SYG laws, and not your pals in the NRA.

            Now please, go peddle your paranoia someplace else.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Mon Feb 24, 2014 at 10:07:37 PM PST

            [ Parent ]

            •  Not killing. The motive in gun buying (1+ / 0-)
              Recommended by:
              gerrilea

              You said buying a gun is fine if the person is calm. Not okay if they're afraid. Is that how rights work for you?

              I wasn't talking about killing, just the mindset when buying the gun. It's a legit question and still exists outside of SYG.

              •  Actually, that's not what I said. (0+ / 0-)

                I said that it'd be nice to think that's how people go about buying guns, but the reality is very different.  I didn't say buying guns is okay merely if one is calm.  In any event, this is quite secondary to my principal point and to the point of this diary.  

                And it's not entirely clear to me how one can claim not to be talking about killing when the discussion is about buying a product that kills.  

                "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                by FogCityJohn on Tue Feb 25, 2014 at 10:10:25 AM PST

                [ Parent ]

            •  P.S. Killing the innocent is murder (0+ / 0-)

              The right to kill in self defense does not legalize murder.  SYG is poorly written law, but it did not create self defense.  It existed before SYG, and will still exist after.

              •  It doesn't legalize murder. Just makes it really (1+ / 0-)
                Recommended by:
                FogCityJohn

                easy to get away with it. Six of one …

                Code Monkey like freedom / Code Monkey like peace and justice too
                Code Monkey very nerdy man / With big warm fuzzy bleeding heart
                Code Monkey like you!

                Formerly known as Jyrinx.

                by Code Monkey on Tue Feb 25, 2014 at 07:12:46 AM PST

                [ Parent ]

                •  And the counter argument is.... (0+ / 0-)

                  That if there is no right to kill in self defense, if victims are purposefully made completely defenseless, then it makes rape and murder very easy to get away with.

                  I'm not going to jump from "Zimmerman got away with murder" to "every rape victim has to lie down and take it".  

                  Every woman who is threatened with rape has a God given right to blow that fucker's head off.

                  •  You know, self-defense was a thing before SYG. n/t (0+ / 0-)

                    Code Monkey like freedom / Code Monkey like peace and justice too
                    Code Monkey very nerdy man / With big warm fuzzy bleeding heart
                    Code Monkey like you!

                    Formerly known as Jyrinx.

                    by Code Monkey on Tue Feb 25, 2014 at 11:55:58 AM PST

                    [ Parent ]

                    •  Yes, I know (0+ / 0-)

                      And self-defense will still be a thing after SYG.  SYG is bad law that goes too far. But it didn't invent the Right to Kill in self-defense.  And getting rid of SYG won't get rid of the Right to Kill.

                      But it does seem like most people here would rather see everyone who kills in self defense charged first with first degree murder and forced to prove their innocence.  I don't agree.

                      •  I don't see any alternative. (1+ / 0-)
                        Recommended by:
                        Norm in Chicago

                        A central flaw in SYG is that it shifts the burden of proof to the prosecution. Thus the state has to prove a negative: The shooter did not fear for his life.

                        And yes, except in cases where the self-defense claim is so obvious that no charges are filed, someone who kills someone should be tried for murder. There should be a thorough investigation.

                        I suppose it would be less terrible if it didn't abolish the duty to retreat, but then it wouldn't be called Stand Your Ground. As is, it's not even necessary that the shooter had no other choice, since the law explicitly creates a situation where a person is authorized to kill another person when it is not necessary to do so.

                        Code Monkey like freedom / Code Monkey like peace and justice too
                        Code Monkey very nerdy man / With big warm fuzzy bleeding heart
                        Code Monkey like you!

                        Formerly known as Jyrinx.

                        by Code Monkey on Tue Feb 25, 2014 at 01:33:15 PM PST

                        [ Parent ]

          •  And yet again (1+ / 0-)
            Recommended by:
            Glen The Plumber

            we get the false equivalence in defense of gun totin'.  There are rational arguments to be made (see i love san fran's comment above) but this is not one of them.

            As the diarist said, and I agree, no one has the "right" to kill.  The "right" that you imagine "ceas[ing] to exist because people don't use their freedom the way you say they should" never really existed in the first place.

            Arrrr, the laws of science be a harsh mistress. -Bender B. Rodriguez

            by democracy inaction on Tue Feb 25, 2014 at 04:21:18 AM PST

            [ Parent ]

            •  We absolutely do have the right to kill (0+ / 0-)

              To survive, I have the right to kill plants and animals in order to eat.  That is the nature of all life.

              A woman who is 20 weeks pregnant has the right to kill her fetus, for whatever reason, not just to defend her own life.

              A woman who is about to be raped, with the risk of impregnation in a Red State, or infection with deadly HIV, has the right to kill her rapist.

              And I have the absolute right to kill anyone who is about to kill my wife and child.

              Life, Liberty and the Pursuit of Happiness.  The 2nd and 3rd depend on the first.  Everyone has the right to kill in self defense, or in the defense of others.

              If you disagree, I trust you will be leading calls to disarm not just the police, but the entire military as well.  What do you call war?

              •  When I was in college, the famous philosopher (4+ / 0-)

                John Wisdom gave a lecture to a large general audience at my school.  The topic was "Do we have free will?"  He spent an hour explaining that the whole issue was just an argument over the use of language.  Nevertheless, some guy raised his hand.  "That's all fine, Dr. Wisdom, but you didn't answer the question.  Do we have free will or not?"

                To say we have a "right" to kill in self defense is not necessarily "false."  It is, however, a damn poor use of language to describe a law based in necessity. It doesn't pass the test of mutuality:  Do people have a "right" to kill YOU?  I think your answer is "NO, unless I am actually attacking them."  I don't think your answer is "Yes, if they think I am threatening them."

                A right answer to the wrong question is a wrong answer.

                by legalarray on Tue Feb 25, 2014 at 07:37:47 AM PST

                [ Parent ]

                •  No single Right is absolute. Always a line (0+ / 0-)

                  You are correct, merely thinking there is a threat is not justification for deadly force.  That is where I part ways with SYG.  There has to be an immediate threat.  But that does not require an active attack.

                  If a man has a knife to my wife's neck, and I have a gun, can I shoot him dead first?  Or do I have to wait until he actually slits her throat?  How do you define an actual attack?

                  Personally, I think for self defense there should be a duty to attempt retreat, to order the attacker to stop, to get to a safe distance and call the cops.

                  But if the attacker refuses to disengage, I'm not going to force a person to run and be chased down and stabbed in the back.  Duty to retreat has practical limits as well.

                  There is always a line, and that is why for messy cases we have jury trials.  But for self defense, the "right" to kill enters as a presumption of innocence.  It is on prosecutors to show that the killing was avoidable.  To show that a killing was murder instead of self defense.

                  For Zimmerman, it was avoidable.  For Dunn, avoidable.  But for many SYG cases, it wasn't avoidable, and sadly necessary to defend the life of the person who didn't choose to attack.

              •  No, you DO NOT have the "right" to kill (3+ / 0-)
                Recommended by:
                DavidMS, FogCityJohn, dotdash2u

                You have the right to defend yourself, which may indeed lead to you taking the life of another person or persons.  You do not have a "right" to kill that person or persons.  While killing that person or persons may be justified, that it not the same as it being your right.  A pregnant woman has the right to terminate a pregnancy if she chooses, not the "right" to kill.  A soldier is authorized to kill the enemy, the soldier does not have the "right" to kill the enemy.  The police are authorized to use deadly force under certain circumstances, they do not have the "right" to kill.

                Again, the "right" that you imagine "ceas[ing] to exist because people don't use their freedom the way you say they should" never really existed in the first place.

                Arrrr, the laws of science be a harsh mistress. -Bender B. Rodriguez

                by democracy inaction on Tue Feb 25, 2014 at 10:07:01 AM PST

                [ Parent ]

                •  Semantics, and rights are not absolute (0+ / 0-)

                  Rights, definition

                  rights.  that which is due to anyone by just claim, legal guarantees, moral principles, etc.:
                  Guarantees, definition
                  a promise or assurance, especially one in writing, that something is of specified quality, content, benefit, etc.,
                  If something is justified, by definition it is a Right.  Killing in self defense is justifiable, and therefore a Right.  Killing not in self defense is not justifiable, and therefore is murder.

                  If the police have a legal guarantee to use deadly force, are authorized to do so, then yes they do have the Right to kill, within the bounds of that authorization.

                  A pregnant woman has the right to kill, yes kill, her fetus, within an authorized timeframe.  Where late term abortions are banned, there is a point where a woman no longer has the Right to abortion.

                  You seem to be hung up on Rights as an absolute thing.  They're not.  None of the Constitutional Rights are absolute.  All have limits.  Just as the Right to Kill has very strict limits.  But where duly authorized, yes it is a Right.

                  the "right" that you imagine "ceas[ing] to exist because people don't use their freedom the way you say they should"
                  For that, I was referring to the 2nd Amendment right to buy a gun, wasn't talking about killing.
              •  Yes: "The Docrine of Neccessity" ... (0+ / 0-)

                This actually happened in NY State

                A boating accident.   Two men in the water.  One life jacket between them.  The larger man takes the jacket by force ...
                The other man drowns.  Survivor stipulates to having hit the dead man with a fish-billy.

                "Tragic but not criminal"

                Acquitted !

      •  Where is it you go... (0+ / 0-)

        ... that most upper middle class people can't imagine being?

        Do you go to Syria? Darfur?

        Or are we talking about the Tenderloin?

  •  America is marching relentlessly toward chaos (3+ / 0-)
    Recommended by:
    Chi, myrmecia gulosa, skod

    The "Us vs. Them" mindset, massive arming of the public because you really want to use guns or because you're afraid of so many others who have them (separate reasons for both sides to own guns), the growing frustration with a do-nothing  government no matter who is elected to office, falling wages and standards of living, instant media fame for the spectacular or horrifying (whether main stream or social media), and a unrealistic national self-image as all-powerful nation, even as our infrastructure, economy and social fabric are decaying to pieces or being plundered.
    I really don't see all these elements combining into a peaceful and constructive solution to America's problems of the 21st century.

    Ash-sha'b yurid isqat an-nizam!

    by fourthcornerman on Mon Feb 24, 2014 at 04:33:21 PM PST

  •  Your practice would be so much more successful (1+ / 0-)
    Recommended by:
    GAS

    in Florida.  :-/

  •  Bravo (7+ / 0-)

    very well put.

    And every lamebrain with a gun should read it and acknowledge they understand as a condition of keeping their weapon.

  •  A righteous rant (3+ / 0-)

    Thank you.

    Being attentive to the needs of others might not be the point of life, but it is the work of life. It can be ... almost impossibly difficult. But it is not something we give. It is what we get in exchange for having to die. - Jonathan Safran Foer

    by ramara on Mon Feb 24, 2014 at 06:21:37 PM PST

  •  Perfect way of putting it n/t (1+ / 0-)
    Recommended by:
    Glen The Plumber
  •  Tipped and rec'd (8+ / 0-)

    This diary should be required reading for the RKBA crowd. Not, judging from some of the comments here, that it would help.

    This doesn't seem that complicated to me. If someone comes into your home and physically attacks you or threatens you, the law says, and has always said, you can defend yourself, with deadly force if the situation calls for it.

    If someone attacks you on the street and you cannot escape, the law says, and has always said, you can defend yourself, with deadly force if the situation calls for it.

    But if you think someone's following you on a dark street, the law — until SYG — said you cannot turn around and shoot them.

    Personally, I think carrying a gun gives one a false sense of security, and the statistics bear me out. But if you feel you need that security, I won't try to talk you out of it.

    But I live in Florida, and the reports of jittery armed citizens blowing unarmed citizens away for no good reason are becoming depressingly common. So please, spare me your arguments in favor of SYG. It is a horrible law. It is the state conferring upon its citizens a license to kill without reason. It is, in a word, immoral.

    I vote we run Rick Scott out of Florida on a high-speed rail.

    by ObamOcala on Mon Feb 24, 2014 at 06:51:33 PM PST

    •  ObamO - if someone is simply following you (3+ / 0-)
      Recommended by:
      gerrilea, blackhand, DavidMS

      down a street in FL you cannot turn around and shoot them and claim SYG. Your hypothetical is missing a lot of facts for the shooter to successfully claim SYG.

      "let's talk about that"

      by VClib on Mon Feb 24, 2014 at 07:50:04 PM PST

      [ Parent ]

      •  That's true as far as it goes, but you haven't (6+ / 0-)

        explored the true reach of SYG.

        If someone is following you down a dark street in Florida and you turn around and shoot him (or her?) dead, you then proceed to a hotel with your girlfriend, order pizza, mix up some drinks and think about how to concoct a story about your "fear of deadly harm" the now voice-less dead man had raised in you.

        That's what Dunn did, minus the dark street, and minus the lack of witnesses.  He simply fabricated the barrel of a shotgun and his fear of the teens.

        Take that daylight public shooting to a dark street with no witnesses and how does it turn out any better.

        In fact, Florida's SYG has one result only: He who's left standing was legally justified, because he is the one and only person who will testify to the jury about his "fear of deadly harm."

        Or fear of harm at all, if we look at George Zimmerman, with his scratched nose and superficial scratch on the back of his head.

        The truth, the absolute truth, is that you can turn around and shoot someone on a Florida dark street for no reason whatsoever and then lie about your fear and win.  As we've seen from these cases, even when there are witnesses and daylight, the result is the same.

        "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

        by YucatanMan on Mon Feb 24, 2014 at 09:38:38 PM PST

        [ Parent ]

        •   YM - Dunn didn't win (2+ / 0-)
          Recommended by:
          gerrilea, DavidMS

          He will be brought to trial again on a murder/manslaughter change and will likely be found guilty.

          Your characterization of the Zimmerman case is missing a lot of pieces, but I am have written too many comments on that case to want to discuss it again.

          I still think your hypothetical is missing a lot of facts, including the physical evidence supporting a SYG claim, for it to be successful.

          "let's talk about that"

          by VClib on Tue Feb 25, 2014 at 12:24:21 AM PST

          [ Parent ]

          •  It remains to be seen how "likely" it is (2+ / 0-)
            Recommended by:
            Tonedevil, FogCityJohn

            for Dunn to be found guilty of any form of murder or manslaughter.

            Someone shot in a dark alley with no witnesses leaves us with only the word of the survivor.  

            Just as the police have blasted people for holding their cell phone or wallet or Wii controller, civilians may blast someone -- and get away with it -- holding something or nothing at all.  Because the only story remaining to be told is that of the "in fear for my life" survivor.

            Many unarmed people have already been shot in Florida and elsewhere. And many of their killers have SYG defenses which immunized them from conviction.

            That leaves kill or be killed.  Insanity.

            "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

            by YucatanMan on Tue Feb 25, 2014 at 08:45:38 AM PST

            [ Parent ]

            •  Given that Dunn has been found guilty (0+ / 0-)

              of three felonies and will spend 20+ years in prison, and the vote on the first degree murder charge was 9-3, I think the prosecution will be able to work out a plea deal on the murder charge and Dunn will be found guilty of murder or manslaughter. If they don't they will charge Dunn with something less than first degree murder, have a six member jury, and have a better chance to convict. Charging first degree was a mistake, but Corey's MO.

              "let's talk about that"

              by VClib on Tue Feb 25, 2014 at 09:20:48 AM PST

              [ Parent ]

              •  Charged with First, but with all included lower (1+ / 0-)
                Recommended by:
                Tonedevil

                counts. Hung jury on all. Interesting.

                I guess we'll see how this comes out. Time will tell.

                "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

                by YucatanMan on Tue Feb 25, 2014 at 10:38:51 AM PST

                [ Parent ]

  •  Someone comes into my house to steal (3+ / 0-)
    Recommended by:
    Norm in Chicago, gerrilea, DavidMS

    I'll offer them my wife too, just to show we're all equal and stuff, maybe my little 8 year old girl too eh?

    Fat chance. I live in the county that wanted to succeed over guns. We leave doors unlocked and women and kids run around where they want without fear.

    “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

    by ban nock on Mon Feb 24, 2014 at 07:13:48 PM PST

  •  Does "kill" apply to abortion? (1+ / 0-)
    Recommended by:
    gerrilea

    One could read your diary to mean that abortion should be banned unless the woman's life was in immediate danger. Not just fear of a future danger, but vitals actually failing.

    Because otherwise, adoption is always an option and "what kind of person wants the right to kill if they have a choice"?  There's always a choice besides abortion.  

    And don't bring up personhood. You said kill, not murder. Abortion most certainly kills a fetus.

    Either a woman can Stand Her Ground and choose to kill, or she can't. Pick one.

  •  I've only killed a few people (0+ / 0-)

    Is it gonna be open-season soon? Oh goodie..

    Life, Death.. it all comes out in the rinse-cycle..

    /Snark people! Few? Maybe just a couple..

    Dear future generations: Please accept our apologies, We were roaring drunk on petroleum -Kurt Vonnegut

    by Anthony Page aka SecondComing on Mon Feb 24, 2014 at 10:06:56 PM PST

  •  asdf (1+ / 0-)
    Recommended by:
    gerrilea
    If, under our Constitution, our government cannot deprive anyone of life without due process of law, how can government authorize anyone else to do it?
    "rights," by definition, are the things that do not require government authorization.

    Governments get their powers from the consent of the governed.  

    If I don't have the (moral) right to defend myself, how can I delegate to my government the power to defend me?

    Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

    by happymisanthropy on Mon Feb 24, 2014 at 10:38:05 PM PST

  •  Oh and (4+ / 0-)
    Clients often ask me to tell them when they have the right to use deadly force.  My answer is always simple:  If you have to ask, the answer is no.
    That's actually a pretty good answer.  If you have time to worry about what the law says, you aren't in immediate peril and you probably aren't in imminent peril either.

    Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

    by happymisanthropy on Mon Feb 24, 2014 at 10:42:42 PM PST

  •  James Bond Defense (0+ / 0-)

    Not even James Bond has a Right to kill.  He has a License to Kill, and it can bloody well be revoked.

    Read my webcomic, "Hannibal Tesla Adventure Magazine" at http://www.kurtoonsonline.com/

    by quarkstomper on Tue Feb 25, 2014 at 02:20:16 AM PST

  •  I was thinking along the same lines, reading of (3+ / 0-)

    a recent incident where an unarmed burglar was shot and killed by the homeowner who evidently heard the jimmying of the door and then hid.  He then shot the burglar from concealment when the guy opened the door.

    It seems in a similar situation, I would call 911 since I would have time and if time was not sufficient, I would retreat, either out of my home or else to my safe room to call 911.  The idea of shooting another human being as if he were a duck or deer and I am hidden in a blind, waiting for him to enter my "fire area" is foreign to me but evidently many people regard such an act to be a classic "castle" defense

    •  It's doubtful any jury would find shooting the (4+ / 0-)
      Recommended by:
      gerrilea, Kasoru, Shifty18, KVoimakas

      burglar in this case not a self-defense scenario, unless you legislate that burglars have to submit to a pat-down and state their reason for invading your home is simply to take stuff, before they enter.

      While you dream of Utopia, we're here on Earth, getting things done.

      by GoGoGoEverton on Tue Feb 25, 2014 at 05:06:57 AM PST

      [ Parent ]

      •  however, let's say it is really a neighbor (0+ / 0-)

        who had not seen any activity in your house for a couple of days and use your key hidden in the fake rock to access your house to see if you are OK.  After all this is how most murders are discovered

        •  So if a neighbor comes in to the house (1+ / 0-)
          Recommended by:
          Shifty18

          (The neighbor that doesn't have my phone or email but has a key ::eyeroll::), doesn't announce themselves and is creeping around the house, I should still be responsible criminally for fearing they are an intruder?

          While you dream of Utopia, we're here on Earth, getting things done.

          by GoGoGoEverton on Tue Feb 25, 2014 at 07:47:18 AM PST

          [ Parent ]

          •  would you be? That is the question (0+ / 0-)

            Perhaps your phone is out of order or maybe you don't check your email for a couple of days and the "hidden key rock" is an old gag.  Are you suggesting for anyone who crosses your threshold does so at his own risk?

            •  I think your hypothetical is so improbable (0+ / 0-)

              that it would not be enough to vote against a castle doctrine.

              While you dream of Utopia, we're here on Earth, getting things done.

              by GoGoGoEverton on Tue Feb 25, 2014 at 09:10:35 AM PST

              [ Parent ]

              •  so civilians have never been shot by accident (0+ / 0-)

                when entering a house for benign purposes?
                From a quick and dirty search here is an actual teen who was shot and killed because he mistakenly entered the wrong house:
                http://www.whas11.com/...

                I can provide other examples if you think my suggestions are too hypothetical

                •  That's not what I said. Are you saying (0+ / 0-)

                  that if someone has reasonable worry that their home has been invaded, that's not enough to use deadly force to defend it and its inhabitants?

                  And I won't be labeled as a 'shoot first'-er either...I don't condone that; I believe a stern warning before shooting (if possible) is best to avoid accidents and having to shoot someone.

                  While you dream of Utopia, we're here on Earth, getting things done.

                  by GoGoGoEverton on Tue Feb 25, 2014 at 10:33:36 AM PST

                  [ Parent ]

      •  No duty to avoid loss of life? (1+ / 0-)
        Recommended by:
        LilithGardener

        It appears your argument is that a homeowner in a position to avoid the necessity of shooting someone has no duty to do so.  In the circumstances outlined by the OP, it seems the homeowner would have had time to take a number of actions that might obviate the need to shoot.

        For example, he could have shouted through the door that he was armed and calling 911.  I suspect the would-be burglar might have fled in those circumstanes, and the entire confrontation could have been avoided.  I see no reason to permit a person to decide that the only solution in this situation is to wait until the opportunity to shoot the burglar dead presents itself.  

        Of course, if you consider the life of a person who may be a criminal to be of no value and unworthy of preservation, then I can see how your view might differ.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Tue Feb 25, 2014 at 12:53:54 PM PST

        [ Parent ]

        •  You're positing that you can know any of this (0+ / 0-)

          and know the result of any of your tactics will be positive.

          You cannot know this. As I posted above, I would take most of the actions you listed above first, depending on my ability to do so. But I do not believe the homeowner is obligated to do so.

          Questions that hurt your stance:

          1. What if the burglar started firing at the noise of the warning?

          2. What if the police respond slowly, or the burglar hears the person make the call?

          3. What if the burglar was not in fact a burglar, or was burglarizing in addition to intending to harm the homeowner or the family?

          4. If the burglar is dead, how do we know whether or not the shooter did what you would have them legally obligated to do? If the homeowner was dead, how do we know whether or not they employed tactics like you suggest, but they did not help?

          While you dream of Utopia, we're here on Earth, getting things done.

          by GoGoGoEverton on Tue Feb 25, 2014 at 03:45:55 PM PST

          [ Parent ]

          •  Sigh. (0+ / 0-)
            1. What if the burglar started firing at the noise of the warning?
            Well, assuming the burglar is armed, I guess maybe the homeowner could announce the warning from a place of safety.
            2. What if the police respond slowly, or the burglar hears the person make the call?
            If the police respond slowly, then the homeowner can take other measures.  And wouldn't you want the burglar to hear you make the call?  How long do you expect him to hang around if he knows the cops are on the way?
            3. What if the burglar was not in fact a burglar, or was burglarizing in addition to intending to harm the homeowner or the family?
            If the burglar is not in fact a burglar, then I suspect the homeowner is going to feel a hell of a lot worse about shooting him.  If the burglar intends harm to the residents, that neither increases nor decreases the the likelihood that warning him or calling the police will be successful, unless it's some idiot who doesn't care if he gets caught.
            4. If the burglar is dead, how do we know whether or not the shooter did what you would have them legally obligated to do? If the homeowner was dead, how do we know whether or not they employed tactics like you suggest, but they did not help?
            Your first question would seem to be the rationale for SYG laws like Florida's.  If you shoot a guy to death, only the killer is around to tell the tale.  Seems to have worked really well for George Zimmerman, right?  Of course, if you called 911, there'd be a recording.  Or there might be other witnesses.

            If the homeowner is dead, then we can assume that whatever defensive measures were employed, they did not help.  That would include taking out a gun and shooting at a presumed burglar fiddling with the lock.  

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Tue Feb 25, 2014 at 04:27:48 PM PST

            [ Parent ]

            •  Are you setting standards that (0+ / 0-)

              you believe could have a legal foundation if a law is written a certain way?

              The 'rationale for SYG' comment was  nonsensical, I don't mean that disrespectfully, just that SYG is founded in an idea that you are not obligated in any way to retreat.

              While you dream of Utopia, we're here on Earth, getting things done.

              by GoGoGoEverton on Tue Feb 25, 2014 at 05:20:11 PM PST

              [ Parent ]

              •  I don't understand the question. (0+ / 0-)

                I'm simply saying that this idea of "shoot first, ask questions later" is both unnecessary and harmful.  To the extent you're asking if I think there should be a different legal standard, as I suggested above, I think a person ought to be under a legal duty to avoid loss of life.  I don't think killing should be rendered noncriminal merely because it's one of several possible ways out of a situation.

                "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                by FogCityJohn on Tue Feb 25, 2014 at 05:40:43 PM PST

                [ Parent ]

    •  So I guess Kitsap River would have been (0+ / 0-)

      shit out of luck had her rapist returned.  After all, she should have retreated out of her home (and hoped she was able to get far enough away that he would not persue) or go to her safe room (didn't bother to build a safe room, too fucking bad) because after all, the idea of shooting another human being (even if that human being has just raped you and could very well be coming back to finish you off) as if he were a duck or deer and I am hidden in a blind, waiting for him to enter my "fire area" is foreign to me but evidently many people regard such an act to be a classic "castle" defense.

      You have watched Faux News, now lose 2d10 SAN.

      by Throw The Bums Out on Tue Feb 25, 2014 at 06:33:21 AM PST

      [ Parent ]

  •  Thanks for the diary. SYG seems like it does (2+ / 0-)
    Recommended by:
    gerrilea, Glen The Plumber

    more harm than good, doesn't it? Mostly performing as a way to delay killers from heading to jail. Zimmerman got off without having to use it, and Dunn is going to jail for life anyway.

    For me, self-defense law is sufficient, along with a castle doctrine that applies to the interior of the home.

    While you dream of Utopia, we're here on Earth, getting things done.

    by GoGoGoEverton on Tue Feb 25, 2014 at 05:09:55 AM PST

  •  Our gov't does not grant rights...that's the first (1+ / 0-)
    Recommended by:
    Shifty18

    mistake you made.

    If, under our Constitution, our government cannot deprive anyone of life without due process of law, how can government authorize anyone else to do it?
    Second, it is our government's duty to "assume innocence", isn't that what these SYG laws are attempting to do?

    Not this:

    In my view, any law that purports to confer, in advance, an individual right to kill another is unconstitutional.
    Next mistake is this:
    such as presence of a violent intruder in your home
    How do you define "violent"?  IF that is the qualifier, nope not accurate, especially here in NY.  If I come home and find you in my house, I can kill you, violent or not.  

    These laws are a backlash at the push to "retreat" even when in public.  And because innocent people are being prosecuted when imminent threats are real.

    Long Island Man Arrested For Defending Home With AK-47

    Then there's this:

    Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone

    Please explain this fact to me again?  How is it that we came together, agreed upon a treaty for our mutual defense and benefit, yet that same entity we created to do such, has summarily denied they have a duty to do as we commanded?

    If the police don't have to defend us, who does?  

    As a non-gun owner and an advocate for the entire Bill of Rights...Should it be assumed that I MUST RETREAT and if I don't, must I be prosecuted to the fullest extent of law?

    What is one to do knowing that there is a "knockout game" targeting innocent people?

    Live in fear forever?  Hide out in my basement until the Zombie Apocalypse is over?

    What you want us to become, prey, I cannot agree with.  Every species on this planet that has survived has done so through self-preservation techniques and evolution.  

    Sadly, force DOES rule this world, it always has and always will.  If you wish to do me harm, I have an inherent/instinctual right to stop you.

    All that said, how do we move forward to a less violent society?  I don't doubt these SYG laws aren't helping but can "the law" actually fix that which only each one of us has the power to do?

    Nope.

    Teach peaceful dispute resolution, teach critical thinking and logic.  Live and act peacefully.

    Our society is devolving because of "the law" and more importantly from the policies coming out of DC that have made the majority of us into paupers, with no viable and productive futures, except of course, being chattel in our Prison Industrial Complex.

    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

    by gerrilea on Tue Feb 25, 2014 at 05:23:18 AM PST

  •  Due process (0+ / 0-)

    The claim that "under our Constitution, our government cannot deprive anyone of life without due process of law," needs work. The 5th amendment's context is various formal legal processes: indictments, trials, punishments, and eminent domain. It does not appear to be a blanket statement covering any and all circumstances in which deadly force might be involved, let alone deadly force wielded by citizens. Certainly government can authorize the ad hoc use of lethal weapons by its agents. It surrounds that use with certain safeguards, and apparently spends a fair amount of effort training its agents in both necessary skills and requisite legal analysis of situations in which force may be used. But at that point, "due process" amounts to prior authorization.

    Civilians also have rules concerning use of deadly force, and if they disobey them, they may suffer legal consequences. But as court decisions have increasingly made clear, the rules must allow for exercise of an individual right to keep and bear arms, which is tantamount to a right of self defense. These are legal rights, and not merely recognized necessity, because the law foresees that when faced with the need to defend yourself, citizens will require both access to the means to that end and also a legal framework under which a similar sort of due process/prior authorization is afforded the individual.

    We can certainly discuss the conditions under which the right to self defense may be exercised. Quite likely some refinement on legalarray's  "no choice" principle will be the primary guideline, but I think that to deny it is a right does not hold up.

    •  But a statute doing more than (0+ / 0-)

      recognizing the fundamental necessity to defend yourself when there is no other alternative is actually conferring a right on other people to kill you without necessity. Do you think they have that fundamental "right?" Do you think our government has that power?

      A right answer to the wrong question is a wrong answer.

      by legalarray on Tue Feb 25, 2014 at 08:18:30 AM PST

      [ Parent ]

      •  I don't see why (0+ / 0-)

        anything so fundamental would not be recognized as a right. If anything, the right to self defense was explicitly the foundational right from which Hobbes, Locke, and the other political philosophers whose thought formed the theoretical basis of the American regime, derived all the other rights.

        More directly, yes, other people have a fundamental right to defend themselves from me when I threaten them. And yes, of course government can and must recognize that right (not 'confer' it). And, of course, if it is exercised "without necessity" or otherwise imprudently, there are consequences, just as there are practical conditions and consequences attached to the exercise of free speech, religious worship, etc.

        •  Yes, but SYG implies killing without necessity. (0+ / 0-)

          It seems clear enough that there is a right (if we must call it a "right") to defend yourself and others. But a right to defend your "ground" in a public place? That's not a natural right.

          It's a common notion among some whites in the Old South states that it is an affront for a black person to not "step aside" for a white person on a sidewalk. A hostile act.  Can you imagine a law in the Old South states giving permission to kill a black person who "attacks" you by refusing to "give ground?"  I give you "Stand Your Ground."

          A right answer to the wrong question is a wrong answer.

          by legalarray on Tue Feb 25, 2014 at 10:05:57 AM PST

          [ Parent ]

          •  SYG implies (0+ / 0-)

            unnecessary killing according to your definition of necessity, but yours isn't the only reasonable definition. The aim of these laws, so far as I understand the matter, is to keep a defender of property from being liable to be second-guessed after the fact, by placing the presumption of reasonableness on the side of the defender who uses deadly force. This means that the defender has no obligation, is under no necessity, to yield ground to an intruder on the defender's property. But on my property, my judgement of potential danger in my situation carries most weight.

            Similarly, my understanding is that I can put up fencing that can cause injury and set aggressive guard dogs out to patrol behind those fences, and, assuming adequate posted warning, in most states in most states I will not be liable for an intruder's injuries.

            In addition, there are many laws that also build in presumptions about liability into general situations without requiring diligent inquiry into the particular merits of the case. E.g., a parent can be held liable for acts committed by their children, because the presumption is that, no matter how ignorant or powerless in fact, the parents both ought to have known of and been able to control the child's actions.

            I can't judge the validity of your claim that even today a black person in certain states risks death on the streets for not stepping aside for a white person (have you got an actual instance?), but such a thing has no relation whatsoever to SYG laws, which are all about defense of your own property, not sidewalk encounters.

             I can see how SYG could be abused, but so can many laws, including freedom from double jeopardy and suppression of improperly obtained evidence. That all said, I never intended to mount a defense of SYG, merely to claim that self-defense is a right and that exercise of that right may reasonably and legally result in death to a malefactor, even a potential malefactor.  Dangers and all, there is, in fact, sometimes a right to kill.

  •  Well.... (1+ / 0-)
    Recommended by:
    i saw an old tree today

    You'll certainly get no argument from me on this, it's just common sense. Oh, wait........

  •  Observation (0+ / 0-)

    Police don't follow "stand your ground."  The major difference between the police and the rest of us, if I understand correctly (IANAL either) is that the police can use deadly force to prevent someone they have strong reason to believe is dangerous from getting away and potentially killing someone later on.  (Example: suspect just shot a cop and is armed and is running away.  Cop's colleagues shoot him.  Example 2: suspect is holed up, armed, and yelling "you'll never take me alive, copper!")

  •  SYG laws explicitly encourage unnecessary deaths. (1+ / 0-)
    Recommended by:
    FogCityJohn

    I simply cannot understand what could possibly make that a good idea.

    Code Monkey like freedom / Code Monkey like peace and justice too
    Code Monkey very nerdy man / With big warm fuzzy bleeding heart
    Code Monkey like you!

    Formerly known as Jyrinx.

    by Code Monkey on Tue Feb 25, 2014 at 07:16:29 AM PST

  •  yes, the pro-lifers are for right to kill (0+ / 0-)

    who woulda thunk.

  •  Hm Good Post Heller/McDonald (0+ / 0-)

    I always enjoy areas I don't know. So just browsing around I didn't realize that in the future Heller etc. apparently reads into the second amendment:

    Although the Law of Justification has heretofore been considered a matter of state law, the recent Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago may have constitutionalized some of the common law rules of "self-defense" as fundamental rights. The U.S. Supreme Court held that the Second and Fourteenth Amendments "protect[] the right to possess a handgun in the home for the purpose of self-defense." And, "stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was 'the central component of the right itself.'”; The Constitution, they wrote, secured "the right to keep and bear arms for self-defense." Prior to these decisions, other Constitution provisions were recognized as securing a right of self-defense. In Frank v. Maryland, the Supreme Court recited the Rights of Englishmen, including the "Right to Resist" Unauthorized Deprivations, was incorporated in the Constitution:
  •  Whoever has superior firepower (1+ / 0-)
    Recommended by:
    FogCityJohn

    has the right to stand their ground. That's what I take from the cases that have come to our collective notice. Might makes right. How was Trayvon not standing his ground if he slugged a guy (and I doubt sincerely he started any physical confrontation but...) who's stalking him? He had a perfect right to be where he was, but he didn't have a gun to back up that right so Zimmerman gets to claim the right. It's abhorrent.

    You're gonna need a bigger boat.

    by Debby on Tue Feb 25, 2014 at 09:54:25 AM PST

  •  Right to kill (0+ / 0-)

    has been relegated to 1600 Penn Ave. for decades now. No trial is needed. Police also has devolved into  a "right to kill" organization". Either subject would make another great diary.

    As the leader goes, eventually the populace will follow and imitate. It's been that way throughout history. We have a President that decides who to murder daily over his morning coffee. Is Zimmerman less entitled? A rape victim? The LA Times reported 54 police killings in LA County in 2011.  12 victims were completely unarmed. All killings were found by the LAPD to be "justified".

    The US is a violent country... from the President(either party) and all the way down.

    Arguing over whether the victims have a right to defend themselves seems a bit off track to me. SYG wouldn't be an issue if we death with the larger issues of violence in this country. I live in Hawaii, as solid a blue state as you will find. Violence is rampant. When the fear of gun control resurfaced 2 years ago the local(and Only) gun shop had its business skyrocket 500% and it has remained there. The Republican Party is essentially nonexistent here so lay the blame elsewhere….its the way we, as a society are.

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