N.R.A.’s Influence Seen in Expansion of Self-Defense Laws

[SecularMotion]

No one had yet heard of a Florida teenager named Trayvon Martin when a group of Wisconsin Republicans got together last year to discuss expanding a self-defense bill before the State Legislature.

The bill, known as the Castle Doctrine, made it harder to prosecute or sue people who used deadly force against an intruder inside their house. But the Wisconsin legislators, urged on by the National Rifle Association in a series of meetings, wanted it to go further. They crafted an amendment that extended the bill’s protections to include lawns, sidewalks and swimming pools outside the residence, as well as vehicles and places of business.

That expanded bill, passed with little debate by the Legislature and signed in December by Gov. Scott Walker, a Republican, is the newest of more than two dozen so-called Stand Your Ground statutes that have been enacted around the country in recent years. Those laws are now coming under increased scrutiny after Mr. Martin was shot to death by George Zimmerman, a neighborhood watch coordinator, in late February. Similar legislation is pending in several other states, including Alaska, Massachusetts and New York.

http://www.nytimes.com/2012/04/13/us/nra-campaign-leads-to-expanded-self-defense-laws.html?hp

[teddy51]

1. Washington State has a very similar law; Washington has no 'duty to retreat' law.

http://wiki.answers.com/Q/Does_Washington_state_have_a_castle_law

It pretty much is the same as Castle Doctrine.

I guess with the Trayvon Martin/Zimmerman situation we have seen the ease at which a law like this can easily be abused.

[SecularMotion]

3. Gov. Patrick has vowed to veto the bill in MA

BOSTON -- Gov. Deval Patrick is vowing to veto a bill that would create a so-called stand your ground law in Massachusetts.

More than two dozen state lawmakers are backing the bill, which mirrors the law at the heart of the debate over the killing of an unarmed black teenager in Florida by a neighborhood watch captain.

http://www.berkshireeagle.com/ci_20287223/patrick-vows-veto-stand-your-ground

[ManiacJoe]

2. Was there something about article you wanted to discuss?

[gejohnston]

4. which has what to do with?

The bill, known as the Castle Doctrine, made it harder to prosecute or sue people who used deadly force against an intruder inside their house.

As it should be. It actually isn't harder, simply that the State has to prove murder or manslaughter. Justifiable homicide is not a crime. The next of kin of home invaders have no business trying to cash in off of the crimes of their relatives. Castle Doctrine is derived from UK common law. Many SYG states are from a result of US common law. Utah and Washington state are examples. Illinois passed SYG in 1961.

http://en.wikipedia.org/wiki/Castle_doctrine

Although Zimmerman my try to claim self defense, SYG is not really an issue. It is either murder (according to conventional wisdom and leaked evidence) or it would have been justifiable under duty to retreat (Zimmerman's version).

http://volokh.com/2012/03/27/floridas-self-defense-laws/
http://supreme.justia.com/cases/federal/us/256/335/case.html

The next of kin of home invaders have no business trying to cash in off of the crimes of their relatives.

While Wyoming has a Castle Doctrine (SYG in the home) but has the one of the most reasonable duty to retreat laws (outside the home). Basically, if you prove that you did everything reasonable to retreat and avoid conflict and prove justifiable homicide, you are immune from lawsuits from th attacker's family.

[iverglas]

8. "Castle Doctrine is derived from UK common law"

Absolutely false, no matter how many times you chant it.

It derives from English common law in the same way as rotten meat derives from cows.

As my esteemed cousin wrote in Woolmington v. D.P.P. in 1935 (my emphasis):

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.

English common law has NEVER given impunity to anyone for assault or murder. Someone who claims to have acted in self-defence must raise that issue at trial, and then the prosecution must prove it untrue, beyond a reasonable doubt.

Here is how the Canadian Judicial Council recommends that the jury be charged:

http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_sd_defence34_2_en.asp

... {name of accused} is justified in killing or causing grievous bodily harm to defend himself/herself and must be acquitted if all of the following three conditions are present:

1. NOA killed or caused grievous bodily harm to NOC to repel an unlawful13 assault (or what s/he reasonably perceived to be an unlawful assault)14 on him/her by NOC; and

2. NOA reasonably believed that s/he would be killed or suffer grievous bodily harm as a result of NOC's assault; and

3. NOA reasonably believed that s/he could not otherwise preserve himself/herself from death or grievous bodily harm.

Unless the Crown has proved beyond a reasonable doubt that at least one of these conditions for self-defence was absent, you must acquit NOA of (specify offence).

NOA is not required to prove that s/he acted in self-defence. The Crown must prove beyond a reasonable doubt that s/he did not.

There has never, ever, ever been anything in English common law that granted immunity from prosecution to anyone who uses force against another person.

While Wyoming has a Castle Doctrine (SYG in the home)

"Castle doctrine" IS NOT "SYG in the home". It is not. Please stop saying it. It is NOT TRUE.

[gejohnston]

15. utter bullshit

Canadian law is basically a castle doctrine. Not like Florida's, but it is still the same concept. It is actually like New York's and Wyoming's castle doctrines.

That is the term Wyoming uses, and how is it not?

There has never, ever, ever been anything in English common law that granted immunity from prosecution to anyone who uses force against another person.

there never was immunity for murder or manslaughter. Whatever nonsense you think is Florida's law, is total bullshit. How it applies to the rest of the US is beyond me because it does not.
From Wiki:

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that designates a person's abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances attack an intruder without becoming liable to prosecution.[1] Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases "when the actor reasonably fears imminent peril of death or serious bodily harm to himself or another".[1] The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states.

The term derives from the historic English common law dictum that "an Englishman's home is his castle". This concept was established as English law by 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628.[2] This was carried by colonists to the New World, who later removed "Englishman" from the phrase, which thereby became simply the Castle Doctrine.[2] The term has been used to imply a person's absolute right in England to exclude anyone from their home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.[3]

There is no duty to retreat in England and Wales
http://en.wikipedia.org/wiki/Castle_doctrine#England_.26_Wales

[iverglas]

22. when you are spewing bullshit

You really should be more polite about it.

You need to start by READING THE FLORIDA LEGISLATION.

I have posted it in this forum about 100 times at this point, with links to the source, so this should really not prove difficult for you.

Just stop fucking equivocating.

The "castle law" WE ARE TALKING ABOUT HERE is the law enacted in the state statutes starting with Florida in 2005 and followed by a dozen plus others in the time since.


What you linked to at the wiki is this -- with my emphasis in my ongoing attempt to assist you to understand this very simple concept:

England & Wales

In English common law a defendant may seek to avoid criminal or civil liability by claiming that they acted in self-defence. This requires the jury to determine whether the defendant believed that force was necessary to defend themselves, their property or to prevent a crime, and that the force used was reasonable. While there is no duty to retreat from an attacker and failure to do so is not conclusive evidence that a person did not act in self-defence, it may still be considered by the jury as a relevant factor when assessing the merits of a self-defence claim.

In England NO ONE IS IMMUNE FROM PROSECUTION. A person who uses force against someone in their home MAY BE CHARGED AND PROSECUTED, and if they claim self-defence it will be for a jury to decide.

In Florida and those states that have adopted its model, NO ONE MAY BE CHARGED if they use force against someone in their home in the circumstances set out in the legislation.

If you will try explaining what, in this, you are failing so spectacularly to understand, I may be able to help.

Apart from that, the wiki you cite is rated C-class, and you might want to try reading the Talk page. Basically, it's garbage in numerous respects.


Canadian law IS NOT REMOTELY SIMILAR TO FLORIDA'S LAW. Canadian law does not allow people to kill other people with impunity. Canada is a civilized nation.


And for good measure, one . more . time, here is the origin of the concept in English tradition:

http://www.phrases.org.uk/meanings/an-englishmans-home-is-his-castle.html

"The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter."

... the 'Englishman's home is his castle' rule didn't establish a man's right to take actions inside the home that would be illegal outside it.

There is NO tradition in English law that a person may commit murder inside the four walls of their home.

[gejohnston]

23. I read it several times

I'm still waiting to read about the wayward ten year old getting blown away.

[Hoyt]

9. Perhaps you can show us some links to cases where a thief's family profited from a legitimate

shooting during a home invasion.

And please, no cases where home owner shot unarmed teenager in back while they were fleeing, or shot some homeless person rummaging through garbage in a carport.

[gejohnston]

11. actually, not a theif but armed robbers

http://en.wikipedia.org/wiki/Bernhard_Goetz

And please, no cases where home owner shot unarmed teenager in back while they were fleeing, or shot some homeless person rummaging through garbage in a carport.

can you show examples of any of these happening?

[Hoyt]

13. Not pertinent -- not in home, and Goetz possessed guns illegally, was sentenced to jail, and shot

one of the people too often. But, I can see how those who carry guns would want protection from that -- after all, they usually train obsessively to shoot people and strap on a gun before venturing out so they stand ready to shoot someone in the highly unlikely event they run into a situation that most of us would handle without the need of resorting to a gun.

[gejohnston]

17. only for the illegal gun

but was ruled self defense. Before you start screaming "racist", Austin Weeks, who is African American, shot and killed one of two white attackers in a NYC subway. The grand jury didn't even indict him for the illegal gun.

unlikely event they run into a situation that most of us would handle without the need of resorting to a gun.

unlikely event in NYC subway in the 1980s? Rural Georgia, you might have a point. Not NYC at that time.

[iverglas]

16. Bernhard Goetz?

Scrape that barrel.

The jury found that Goetz had acted recklessly and had deliberately inflicted emotional distress on Cabey. The NY Daily News stated that Goetz's decision to fire a second shot at Cabey was a key factor in the jurors' decision. The jury awarded Cabey $43 million – $18 million for pain and suffering and $25 million in punitive damages.

Goetz subsequently filed for bankruptcy, saying that legal expenses had left him almost penniless. A judge of the United States Bankruptcy Court ruled that the $43 million jury award could not be dismissed by the bankruptcy. Asked in 2004 whether he was making payments on the judgment, Goetz responded "I don't think I've paid a penny on that", and referred any questions on the subject to his attorney.

You really don't trust your fellow citizens, do you? Juries ...

And please, no cases where home owner shot unarmed teenager in back while they were fleeing, or shot some homeless person rummaging through garbage in a carport.

can you show examples of any of these happening?

I am googling and googling to find the case I have in mind that I posted here a while back ... a 13- or 14-yr-old unarmed African-American kid shot dead by a householder who was in no danger whatsoever. I couldn't ever even find any follow-up on the incident, which certainly suggests to me that no charges were laid ... unsurprisingly, since no charges could be laid, given that the incident occurred in Florida ...

I'll keep looking and let you know when I find that report.



typo

[gejohnston]

20. I trust juries in cases

that were not tried in the media. Not all, Casey Anthony was correct because the DA could not prove the cause of death let alone that Casey murdered the child.
Civil cases have a much lower standard of proof.

[iverglas]

24. "home owner shot unarmed teenager in back while they were fleeing"

Found it.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=440856&mesg_id=441274

... There are many stories in the naked city. I didn't have to look far to find one to show that my scenario is not as fanciful as I'm sure some here would have leapt to say it was. This is the first one google found for me when I searched for teenager shot breaking house (there's a photo of the boy there, lest anyone try saying that some 12-yr-olds are big bad guys):

http://www.news4jax.com/news/23745268/detail.html <Jacksonville, Florida; link now dead>

Family Says Boy Shot Breaking Into Home
Brunswick Boy's Family Says He Was Shot, Killed By Homeowner
POSTED: Monday, May 31, 2010

BRUNSWICK, Ga. -- The family of a 12-year-old said he was shot and killed breaking into a home.

... Ratliff said she though her son was at the pool. Instead, he and two friends were trying to break into a house.

"They was being kids ... doing things they didn't have no business doing," said Devron's mother, Monique Ratliff.

... A man and woman were in the home at the time, and the man came downstairs with a gun. The other two boys ran, but Devron did not. His parents said he got a bullet in the back.

... The parents said they were speaking out to help convince other young men that bad decisions can have tragic consequences.

Working links:

http://www.wtoc.com/global/story.asp?s=12576584

http://hinterlandgazette.com/2010/06/african-american-teen-devron-frenell.html

-- an opinion piece written by a real piece of shit:

What happened to Devron Frenell, 12, should be a lesson to all kids who are up to no good. There are penalties for bad behavior and Frenell learned the hard way. Devron Frenell’s family said he was shot and killed breaking into a home. According to News 4 Jax, Monique Ratliff, his mother, said she thought he was at the pool, instead he and two friends were trying to break into a home. She was absolutely right when she said her son and his friends were “doing things they didn’t had no business doing.”

Well, they broke into the wrong home and I don’t blame the homeowner for shooting him, though I don’t believe he would have shot him if he had realized it was a child. He was protecting his home. According to News 4 Jax, when the man, who lived in the home, came downstairs, the other two boys ran, but Devron didn’t and he was fatally shot in the back.

The Brunswick police have launched an investigation and have not released the police report or any details about the incident. This is a real tragedy that could have been avoided, but it is proof that bad decisions can have horrible consequences.

Yes, there are penalties for bad behaviour. The death penalty hasn't been applied to house-breaking for some centuries now ...


And now I am going to link somewhere you don't really want to go, or even want to know exists, but it's important to see things like this, to understand what these laws are really all about:

http://www.newnation.co/forums/showthread.php?t=180897

I have to admit I'd never really seen anything like that before myself. (I did run across it when searching this story in the past.) But I've been to Florida quite a few times, and I've had people talk that way about African-Americans to me, a total stranger (and known Canadian and customer of their business, in two cases), so I shouldn't be surprised.

These laws are racist. Period.

That homeowner would have been done for murder in Canada, I assure you.

[gejohnston]

26. most Floridians are not from the south

most are from NY and umm Canada.

What are the races involved? Cross racial murders are rare. The race of the killer is the same as the victim in almost 80 percent of the cases.

[iverglas]

27. didn't like the answer to your challenge?

[gejohnston]

29. I was busy

but where are the facts of the case? News snippets give a few facts, not always facts, but certainly never the whole truth.

This is the thing about Florida, most people are first generation transplants from elsewhere. Most of them are from New York, New Jersey, Ohio, and PA. Some are Canadians, Illinois, Michigan etc. In my area, mostly Queens and Long Island. Very few (especially in gated communities) are actually from here. If they are racist, they learned it from there. They are open about it here. More so than the actual southerners.

[iverglas]

5. the distinction between "castle" and "stand your ground" is important

The media almost never get either of them, but expecially the "castle law" trash, right.

They are entirely different. One refers to actions in a person's residence (or vehicle, in some cases); the other refers to actions in a public place or otherwise outside a residence.

They are both the product of right-wingery and racism, and "castle law" legislation, at least, is legal garbage. I've posted the opinions to that effect of authoritative voices over and over, in the last 6 or 7 years at DU.

Here's a handy summary/intro to the concepts:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=476524&mesg_id=476578

I confused the two things myself, in my subject line, when I wrote the definitive post on Florida's "castle law" legislation back in 2006:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=125237&mesg_id=125237

It really is worth reading that post, although it is not a walk in the park to understand everything I quoted there.


Here are the relevant bits of Florida's law, which the others are modeled on, with my emphases:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.012.html
(stand your ground)

776.012?Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1)?He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2)?Under those circumstances permitted pursuant to s. 776.013.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.013.html
(castle law)

776.013?Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1)?A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a)?The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b)?The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

You can see the difference. In the first, there must be a reasonable fear. In the second, the reasonable fear is PRESUMED.

If a person meets the criteria in the legislation -- knew or had reason to believe that someone who was in their residence had unlawfully or forcibly entered it -- they need not offer the least shred of explanation or evidence to justify killing that person, i.e. to show thay they had any fear at all of death or harm. They are PRESUMED to have had such a fear, and no prosecutor may even attempt to prove that they did not have such a fear.

The law grants IMPUNITY to anyone who uses force against someone who is unlawfully in their home. You really, really can kill the neighbour kid who broke in the basement window and drank the whisky and fell asleep. (And I don't give a crap how many gun militants might show up bleating that this is not true. On the plain language of the statute, it is.)


On "stand your ground", the former "duty to retreat" was really just one aspect of the requirement that people only use force if there is no reasonable alternative. Particularly in public, it makes hugely more sense to require that people remove themselves from a potentially violent situation, where they can reasonably believe that is possible, then simply give them carte blanche to start shooting. Not just because civilized societies do value the lives of all human beings over the wounded pride of someone required to "retreat", but because public safety is also an issue of concern to reasonable people.

[gejohnston]

6. What is your obession with Florida?

Florida's Castle Doctrine law is nothing like New York's, is nothing like Wyoming's etc. Most of the push was in the 1920s by progressive courts.

[iverglas]

12. what is your obsession with not knowing what you're talking about?

The "castle doctrine" laws that are in issue are the statutes modeled on the 2005 Florida statute.

You probably want to pay more attention.

[gejohnston]

18. I know exactly what I am talking about

I do know the laws of my country. The Florida law, or any based on it, does not turn your house into a free fire zone.

Perhaps you should develop critical thinking skills.

[iverglas]

25. being insulted by someone who is so unable to comprehend

and/or unwilling to admit to comprehending such a simple thing is really quite entertaining.

Why don't you give us a post in which you reproduce the relevant bits of the Florida "castle law" (776.013) and tell us, in your own words, what it means?

[gejohnston]

28. I read the law

776.013?Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1)?A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a)?The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

presumption n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof he is not; a person who has disappeared and not heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.

In other words, the "sleeping ten year old" would disprove the presumption.

[Hoyt]

14. Sure thing, guns are such a progressive cause.

[gejohnston]

19. that is not a gun issue

that is a use of force issue.

[DonP]

7. Well, if the New York Times says it, it must be true - except when they make shit up

Did Jayson Blair write that byline for them?

This from a newspaper that seems to think every gang member carries an AK-47?

A lot of people are getting half ass descriptions from bloggers on places like Daily Kos and the NYT on Castle Doctrine and SYG laws and think they are somehow the same law.

But even more people are writing blogs condemning them because of the situation in Florida, which has nothing to do with Castle doctrine and, based on the charges filed today, nothing to do with SYG either.

But gun control minded people see this as a great opportunity to try and get that dead horse back on it's feet, prop it up with some 2x4s and beat it a little more. It's a chance to take on the evil and dreaded NRA, that they told us last week has no real political power anyway.

The good news is all they'll do is write about it, a few politicians like Chuckie Schumer, and Feinstein, McCarthy et. al. will send out fund raising letters asking for "... just $3 to fight the NRA and guns everywhere" and some suckers will send in a check. Then ... absolutely nothing will happen.

Next week the NRA will meet in St. Louis, announce their paid membership is now 4.5 million, give or take, and that dead horse will fall over again in a week or two.

[Hoyt]

10. This from a poster who thinks they have to strap on a gun or two to venture out into public.

[DonP]

21. That memory loss you have is is getting much worse - I live in Illinois, we have no gun rights

Not that facts ever got inthe way of one of your inane posts before anyway.

Why don't you live here in our gun free paradise too?

Nobody can strap one or two on and go anywhere outside their own home. Other than murder being up 66% over last year in Rahm's gun free Chicago, it's a great place to live.