Judge denies 'stand your ground' motion in retired OPD officer's shooting of son

[SecularMotion]

At a tear-filled hearing on Friday, former Orlando police officer Timothy Davis Sr. tried to convince a judge that he had no choice but to fire the shots that killed his 22-year-old son.

Davis Sr. said he was beaten. Nearly crippled. In fear for his life.

But after watching video of the retired lieutenant retrieving a gun, pointing it toward his son and firing, Circuit Judge Jenifer Davis ruled the defense had failed to show the shooting was justified under Florida's controversial "stand your ground" law.

The judge's ruling means the case will likely proceed to trial. It's set for Nov. 26.

http://articles.orlandosentinel.com/2012-11-02/news/os-timothy-davis-stand-your-ground-20121102_1_timothy-davis-immunity-motion-orlando-cop

[Eleanors38]

1. Sounds like the law is working, trial forthcoming.nt

[Starboard Tack]

5. Sounds like the judge is working.

If the law was working, the killer wouldn't have been trying to hide behind it.

[glacierbay]

6. That doesn't even make any sense

the judge was following the law, that's why he rejected the SYG defense.

[Starboard Tack]

10. Which demonstrates my point.

The SYG law obviously confuses those who are not that familiar with the law and how to interpret it. I think it needs to be rewritten and made more explicit to guys like this and the Zimmermans of this world that they don't have a license to kill. The problem goes deeper when we encounter prosecutors and judges who care more about their careers than they do about justice and the law.

[glacierbay]

11. It surely didn't confuse the judge

or the prosecutor, and it probably didn't confuse the accused, who happened to be a cop. He should have known the SYG claim wouldn't fly, and he probably did know but he threw it up there hoping it would stick and it didn't.

[Starboard Tack]

16. Exactly! Judge made a good call.

"he threw it up there hoping it would stick and it didn't" - this time.

[aikoaiko]

7. Wow! Are you against all motions by defense or just any using SYG?

I'm always curious how far those who seek more restrictions on RKBA will go to undermine civil liberties?

[Starboard Tack]

12. No, I would have made the same motion.

Why would any lawyer throw away a "get out of jail free" card if he has a chance to play it?
Rewriting Florida's SYG law would pose no restrictions on RKBA or undermine civil liberties. The judge made a good call IMO.

[ProgressiveProfessor]

20. Why does it need rewriting?

It is working as intended...and by all signs working well. What compelling arguments do you have that it has serious flaws?

[Starboard Tack]

22. Quite simple. No DTR.

Onus should be on the shooter to convince a jury there was no other option. As a gun carrier, I'm sure you disagree, so I doubt you find my argument compelling, but that's the difference between us. Illinois has it right.

[gejohnston]

23. the burden of proof should always be on the Crown/State you prove that a crime was committed by

you.

[Starboard Tack]

26. Absolutely. And it is.

[gejohnston]

31. no, because

because justifiable homicide is not a crime. If you are using it as an affirmative defense in a murder or manslaughter case, you are being expected to prove that you are innocent of those crimes.

[Starboard Tack]

39. Only when there is evidence to the contrary.

Enough for a prosecution. Very few prosecutors will pursue a case without good cause.

[gejohnston]

42. unless there is political pressure

or a ideologue for a DA, which is a problem with the Zimmerman case. Rick Scott assigned a DA that has a reputation of over charging even though the facts don't support it. The facts don't support second degree murder. Manslaughter maybe, but not murder. This is the same DA that would not waive the mandatory min for a lady firing a warning shot in her home.
As long as the US elects DAs, DTR and the death penalty will always be fundamentally unjust.

[ProgressiveProfessor]

24. DTR would be a repeal, not a rewrite

Even under SYG, the basic requirements for the use of defensive use of deadly force remain.

Would you want to apply DTR to Castle Doctrine as well?

[Starboard Tack]

30. I agree with the Illinois law

Check it out
http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=8357

[gejohnston]

37. it still involves having to prove your innocence.

The problem would be if the person breaking in wielding a toy gun or knife that looks real at a distance. In the defender's mind, it would a be a clear threat of death or bodily harm. The DA and a jury would be Monday morning quarterbacking, hence an innocent person would go to prison for something a cop would get a pat on the back for.

[ProgressiveProfessor]

46. As is any affirmative defense

[gejohnston]

8. how is the law not working?

Last summer a woman took "credit" for a murder in Tampa, and tried to claim SYG. Problem was, not only did she not do it, she was not even in the county when the crimed occurred. How would that be a failure of the law?

[Starboard Tack]

13. How does that example relate to anything?

Makes zero sense. First, you say she took credit for a "murder", then she claimed SYG, which would make it justifiable homicide, not murder, then you say she wasn't even there. WTF is going on in Florida these days?
And when are they gonna finish counting the damn votes?

[gejohnston]

14. my point was

You are saying there are problems with the law because of misunderstanding. The problem isn't the law, it is the misinformation by the MSM in explaining it, not to mention disinformation by groups like VPC and Brady and some progressive talk radio hosts.

The case went like this, TPD investigate an unnatural death in a store, ruled it as murder. A couple of days later, some lady came forward to claim that she was "standing her ground" against the guy. I'm guessing she knew and was protecting the killer and said that seriously thinking using those magic words would stop an investigation.
This was during the time when the media was giving people the false impression that just claiming SYG would stop any investigation. Some stupid people , and some anti gun posters here, actually believed that. The problem is not with the law, the problem is with the media's ability to correctly explain it to the public.

[Starboard Tack]

17. You know what my problem with the law is.

It relies solely on the shooter's word that he was in fear of his life, when there are no other witnesses, or hard evidence to the contrary. If this fool hadn't videotaped himself walking, without a noticeable limp, to his car, taking and pointing the gun, he would probably have gotten away with it, especially with the supporting testimony of the daughter.
Reminds me of the lady cop who shot the bow and arrow, naked guy in the street. Her word against a dead druggie's word.

Blaming the media for everything is a cop-out, btw.

[gejohnston]

18. that is not actually true either

but using your same logic, under DTR, an innocent guy, who could not prove his innocence, would go to prison for defending himself. The "only witness is dead" is a cop out.

No, the media did mis and dis inform. Just like the "Florida was the first state to pass such a law" even though a simple search would have shown that Illinois passed a law just like it 44 years earlier.

[Starboard Tack]

19. Illinois Law is not the same. There is a duty to retreat outside the home.

There is a movement to make Illinois like Florida. This guy says it better than anyone "SYG laws circumvent the fundamental duty to avoid conflict"

Illinois currently does not have a similar law, but Illinois lawmakers continue to push for a similar version of the law. The basis for "Stand Your Ground" laws is that individuals should be able to use deadly force when they believe their lives might be in danger instead of seeking to avoid conflict at all cost. Duty to retreat is a fundamental principle of the law which asserts that if individuals are physically confronted with a clear and present danger while outside of their homes, they have the obligation to remove themselves from harm's way if at all possible, thereby avoiding the need to use deadly force in self-defense. The main difference between Illinois’ self defense law and Florida’s stand your ground law, is that in Florida, an individual is justified in the use of deadly force and does not have a duty to retreat if they reasonably believes that such force is necessary to prevent imminent death or great bodily harm to themselves or another, or to prevent the imminent commission of a forcible felony. In Illinois, the statute does not carve out a specific exception to the duty to retreat. Therefore, had the event occurred in Illinois, Zimmerman would likely be held liable for his failure to avoid the situation. As such, individuals in Illinois should retreat whenever possible, and only resort to force and deadly force when faced with imminent injury or death.

The “Stand Your Ground” laws circumvent the fundamental duty to avoid conflict, and the enactment runs the risk of creating a Wild West mentality when it comes to mitigating violence and gun deaths. In states that have enacted "stand your ground" laws, individuals who evoke this defense are, in effect, acting as judge, jury, and executioner. With Illinois already suffering from high incidences of violence, the “Stand Your Ground” law is not a viable option.
http://lavellelaw.com/criminal/stand-your-ground-law-trayvon-martin

[gejohnston]

21. that is castle doctrine, there is a difference

I'll have to look at the law again.
That said, SYG in Zimmerman's case is irrelevant since SYG is not being used. The evidence shows Zimmerman being attacked and getting his head pounded in the pavement while walking to his car, so in Illinois, he probably would have walked.

and the enactment runs the risk of creating a Wild West mentality when it comes to mitigating violence and gun deaths.

that is kind of a silly value judgment since the wild west didn't actually exist, and many of the DTR even from your home happened to be in the former "wild west".

[Starboard Tack]

25. Look at it again.

DTR is an excellent principle. It means it is you duty to retreat unless there is no other option. I have no problem with that, especially outside the home and sometimes inside the home. Depends on the circumstances. If I kill someone, justified though it may be, I should have to convince a court of the same, if there is any doubt.

[gejohnston]

29. that would involve having to prove yourself innocent of a crime

that is always a bad principle either way. No one should have to prove their innocence, there are no exceptions. If there is any doubt, I have faith in the police to carry out proper investigation to prove otherwise.

[Starboard Tack]

34. Wrong! The onus is always on the prosecution.

You would have the opportunity to defend yourself after killing someone, if police and prosecutors didn't buy your story. Big difference.

[ProgressiveProfessor]

40. So at least it is clear you do not support Castle Doctrine either

Perhaps that explains why you continually misstate them.

[petronius]

41. Even under DTR, shouldn't the burden be on the state to prove that you failed to retreat?

It's not you that should need to convince the court that you had no option, it's the state that needs to prove you deliberately neglected an opportunity to retreat.

And in either DTR or SYG, you'd still have to demonstrate that you had a reasonable fear of death or harm...

[ProgressiveProfessor]

44. Actually any claim of SD is effectively an affirmative defense

And the burden shifts in most states.

As it was explained to us when my late wife double tapped a perp who had his gun pointed at me, you stipulate that you killed the deceased, but that it was not illegal to do so. It was in fact a homicide, but it was not a murder.

[petronius]

49. Perhaps I'm mistaken, but I thought that to succeed with a claim of self-defense, the shooter

would need to demonstrate a reasonable fear - that burden would exist under SYG or DTR, and if legitimate SD can't be shown than the rest doesn't matter.

But if the law is DTR, it seems to me that, once the shooter has shown the existence of a reasonable fear, then the question of whether or not retreat was possible would arrive. I'd say that the shooter should not be required to prove that no retreat was possible, but rather that the prosecution should prove that the shooter neglected a sure escape...

[ProgressiveProfessor]

50. You are quite correct, they are separate issues before the court

However, if the decision was that even though your fear was reasonable but you did not retreat though could have, you would have committed a crime under DTR regimes and could face serious jail time. It is that kind of subjective and at time capricious second guessing that lead to both CD and SYG.

[ProgressiveProfessor]

38. The poster has a long history of conflating the two and calling it SYG

when it is in fact Castle Doctrine, which enjoys very broad support in the US

[ProgressiveProfessor]

28. Not these lies again

SYG has nothing to do with the defendant having to show he was in reasonable fear of his life. They are independent issues before the court.

To review the basics again, generically:
Castle Doctrine: Presumption of reasonable fear, no duty to retreat,
Stand You Ground: Must show reasonable fear, no duty to retreat

That you continue to make erroneous posts after all this time leads me to believe that your misinformation is intentional

[Starboard Tack]

32. You want to travel the ugly path of personal insults?

Enjoy it! Bye bye.

[ProgressiveProfessor]

35. Sometimes the facts are ugly. Your continued posting of clear misinformation needs countered

[TPaine7]

9. Wow! n/t

[Eleanors38]

52. The accused try to "hide" behind any law they think will work in their favor.

Nothing new about that. The more judges rule in cases like this, the more case law will draw the bright lines on SYG.

[Starboard Tack]

53. Very true. Meanwhile, we'll await the next guinea pig.

[Remmah2]

2. Isn't this why we have a justice and court system?

Go figure.

[sarisataka]

3. Video is inconclusive

to support SYG. As the evidence is also not clear, the case goes to trial.

problem?

[ManiacJoe]

4. The system seems to be working the way it is supposed to.

However, I think that video is going to make the claim of self defense more difficult since the shooter was not being attacked when the gun was taken from the car and then he went back into the confrontation.

[ileus]

15. Sounds like SYG is working.

Good on the judge for making the right call.

[fightthegoodfightnow]

27. Sounds Like Stand Your Ground Laws are Used to Defend Themselves Against Criminal Charges

As if self defense never existed as a defense, stand your ground laws are unnecessary.

[ProgressiveProfessor]

33. Its called an affirmative defense

The OP and some of the other posts here continue to misconstrue the various self defense laws in an attempt confuse and mislead others. Its pretty straight forward once you wipe away their FUDs.

SYG has nothing to do with if it was a justified use of lethal force in self defense. SYG only states that there is no duty to retreat. All the basic threshold remains unchanged.

[fightthegoodfightnow]

36. Unnecessary

They had a defense before SYG laws.

[ProgressiveProfessor]

43. Absolutely Necessary

Self defense laws were often a patch work and recognition at times capricious. Formal embodiment in the law for both Castle Doctrine and Stand Your Ground laws clarified the self defense laws in many states. While some have concerns about the No Duty to Retreat portions of both laws, the basic precept of reasonable fear of great bodily injury or death has not been changed by either law. In the case of Castle Doctrine, there is the legal presumption (which can be attacked by the state) and in the case of SYG it remains totally intact.

[fightthegoodfightnow]

45. Clarified Nothing

Gave another defense to assert innocence when none is entitled.

[ProgressiveProfessor]

47. Actually it did, often codifying what was precedent in many states

It also did not change one whit the basic rules of self defense.

You are going to have to articulate your reasoning if you are truly trying to fight the good fight now...what drastically changed in the standards of self defense and why was that change unreasonable? Is it SYG or CD you have a problem with?

[fightthegoodfightnow]

48. Two Defenses When One Would Do

It's simple.

[ProgressiveProfessor]

51. If it was that simple, there would not have been the need for CD nor the whining over SYG

The regrettable taking of a human life is rarely if ever "simple" for adults