By Lee Williams . . .
Florida’s Stand Your Ground statute and similar laws in other states can offer immunity from prosecution when someone uses deadly force to defend themselves, and affords them quick access to an appellate review if the case doesn’t go their way.
In other words, if a defendant involved in a defensive shooting invokes a Stand Your Ground defense, their case can be dismissed before a trial even begins if it is proven they are entitled to statutory immunity, or appellate judges can be brought in quickly to make sure the case gets handled correctly.
When a defendant files a Stand Your Ground motion, their case is put on hold. Prosecution is halted. The trial court must hold a “Stand Your Ground” hearing – a sort of mini trial – to determine whether the defendant’s use of force meets the standards for Stand Your Ground immunity.
At this point, the burden shifts to the prosecutors, who must then prove by “clear and convincing evidence” why the defendant is not entitled to immunity from prosecution.
After this mini trial, the judge can either dismiss the charges or allow the case to go forward. However, if the charges are not dismissed, the defendant can file a Writ of Prohibition, which quickly bumps the case up to an appellate court for review. This writ can save the time it normally takes to get to the appellate level — usually as much as 18-months to two years — because it allows the defendant to forego a jury trial, sentencing and other delays and present their case directly to the appellate judges, who can affirm or deny their writ.
Stand Your Ground was created to protect people from unjust, malicious or politically motivated prosecutions after they acted in self-defense. By shifting the burden of proof to the state and by making an appeal quick and easy, the law has become a powerful tool, which some believe should be expanded to include other statutes involving Second Amendment rights.
“We need a Second Amendment immunity defense for anything involving the lawful possession of a firearm,” said former Florida prosecutor Lisa Chittaro. “It should mirror Stand Your Ground statutes, but it needs to be broader. It should allow defense attorneys to ask the court to find immunity under the protections of the Second Amendment quickly and efficiently and if they don’t, it should provide a quick route to the appellate level without having to go through the entire court process, which can take years.”
Chittaro pointed to several types of criminal cases that should be covered by Second Amendment immunity. Most involve arrests stemming from gun-free zones, such as schools, sporting events and airports. Many of them lack knowledge – a major factor in a criminal case – much less actual intent to commit a crime.
“If a parent picks up their child from school and they forgot their firearm and someone sees it and complains, they should be covered by Second Amendment immunity,” she said. “The same goes for other gun-free-zone prosecutions where there was no knowledge or intent.”
The problem with most of the prosecutions resulting from arrests in prohibited places, is that police and prosecutors often forget that Americans have a constitutional right to keep and bear arms. A trial judge and/or appellate court should review these cases to determine specifically if it involved this constitutionally protected right, or if the defendant knowingly and with intent committed a crime. Besides, in many states, the list of prohibited places grows every time their legislature meets. This is lawfare – pure and simple.
Every prosecution stemming from an arrest in a prohibited place should begin with an acknowledgement of the defendant’s Second Amendment rights, especially since gun-free zones infringe upon these rights. If a case involves absentmindedness, and not knowledge or the specific intent to commit a crime, judges need to toss them out. It is, after all, what the Framers had in mind when they wrote the Second Amendment.
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It would help if “Stand Your Ground” and “Self-Defense Immunity” would stop getting conflated:
The two are different legal (and statutory) concepts. Stand Your Ground means that a person has no duty to retreat from a mortal threat before acting lawfully in self-defense. Self-defense immunity means that someone who claims self-defense as a legal justification (affirmative defense) for use of deadly force must has legal (and, in many places, civil) immunity against prosecution, unless and until the self-defense claim is disproved beyond a reasonable doubt.
Self-defense immunity applies regardless of duty, opportunity, or decision to retreat when acting in self-defense. One need not invoke “Stand Your Ground” in order to invoke self-defense immunity.
“One need not invoke “Stand Your Ground” in order to invoke self-defense immunity.”
That’s how George Zimmerman defended himself in court from the violent attack from Trayvon Martin – Self defense, not ‘stand your ground’.
Not-so-strangely, you wouldn’t know that from the narrative of the Leftists about the events of that night…
Terrified of losing power over their subjects many strawmen were hastily assembled that narrative.
Geoff, during the Zimmerman case I borrowed a friend’s condo on A1A in Flagler Beach. It’s in that neighborhood. Becky met me there for the weekend. She’s a para in a law firm. Offices in Orlando and Melbourne. (Neighborhood?) I knew other people there. Been there before. Always a good time. This time everyone thought Zimmerman should go to D.O.C. Would go to D.O.C. I said he shouldn’t and would be acquitted. I was shouted down. Even Becky. Don’t you love it when the other side is almost always wrong. When Zimmerman was acquitted I didn’t call anyone with an “I told you so.” Didn’t have to. They were misguided. Not stupid.
This article did not conflate them, nor confuse them. They ARE two distinct aspects of legal immunity in cases of self defense. It made me mad how the lamstream “media” railed agsint Stand Your Ground when that was NOT involved at all. George was not “standing his ground” he was forced to LIE on it, fighting for his life agastst a drug crazed hate filled punk who was up to no good and had declared his clear intent to kill him (George, that is). How can one “stand” his ground when he is lying on it under a two hundred pound monster? Now had Traytray confronted him face to face, man-like, and George had puled his gun to defend himself then fired, Stand Yuor Ground might have been brought properly into play. but Traytray was too much a coward, had to jump himf from behind and ground/pound him.George had no optioins, thus conld not invole SYG. He DID rightly and accurately invole the law of self defense, particulary as Traytray had discovered George’s gun and was attempting to gain control over it to he could use it to kill George, his stated intent.
Oh but the “press” could not have attempted to score any points had they been accurate. They hete SYG and used this case to attempt to get rid of it. Fail. And fail again. Funny how that “angelic ten year old choirboy” (as SO dishonestly portrayed in the “press” ended up with a prosecution which actually seated a material witness in the trial who was NOT (and was KNOWN to not be) the person she was declared to be, yet NO ONE has charged that prosecutor with gross perjury, witness tampering, fraud upon the court….. then be disbarred and sentenced to hard time.
Oh, but it did. To wit, FTA:
“When a defendant files a Stand Your Ground motion, their case is put on hold. Prosecution is halted. The trial court must hold a “Stand Your Ground” hearing – a sort of mini trial – to determine whether the defendant’s use of force meets the standards for Stand Your Ground immunity.”
This wording conflates “Stand Your Ground” and “self-defense immunity.”
Piling on, with Chip…
First sentence, first paragraph:
“Florida’s Stand Your Ground statute and similar laws in other states can offer immunity from prosecution…”
Way to go dude – just dehumanize one party to the confrontation, turn him into a monster, and there can be no further conversation.
You can’t know, I can’t know, whether Zimmerman or Martin attacked the other first.
I do know that Zimmerman was a cowardly little shit for not confronting Martin in the street, under the lights, in front of a camera, when he had the opportunity. Instead, he stalked Martin into the darkness, and no one knows what happened there – except Zimmerman and a dead guy.
You go ahead and idolize Zimmerman, and demonize Martin if you insist. I have serious questions that will never be answered. And, I wouldn’t believe Zimmerman if he told me that the sky was blue.
“he stalked Martin into the darkness“ carrying a firearm with lethal intent in mind. Treyvon Martin had committed no crime yet Zimmerman stalked him with a firearm.
Zimmerman was the aggressor and initiated the confrontation, on the hunt for the black kid, even after the dispatcher told him to wait for the police who were on their way.
No, Zimmerman did not “stalk” Martin. He got out of his car to try to figure out where he was, and get a better description of him — and when the dispatcher said “You don’t need to do that”, he stopped.
Zimmerman wasn’t a threat to Martin at that point. When Zimmerman stopped to try to figure out where he was, it was then that Martin attacked.
Being followed is not, in and of itself, a sufficient cause for initiating lethal force against someone.
It’s important to understand what Stand Your Ground means and what it does not. The media often don’t either through malice or simple ignorance.
Self defense lawyer Andrew Branca lists five criteria for a valid claim of self defense. They are Innocence, Imminence, Proportionality, Avoidance and Reasonableness. All Stand Your Ground does is to remove Avoidance as one of the criteria. (Castle Doctrine make the interior of your home and, depending on the state, your business or motor vehicle Stand Your Ground.) Stand Your Ground has no effect on the other criteria. Branca distinguishes between “hard” and “soft” Stand Your Ground states. In hard states, whether Avoidance was feasible cannot be brought up at trial. In soft states, the prosecutor can sneak it in under Reasonableness.
For self defense immunity to be effective, it needs to cover both criminal prosecution and civil suits. It also needs to be determined in a pretrial, self defense hearing (not a Stand Your Ground hearing) that is much less expensive for the defender than a full blown trial. If the prosecutor cannot disprove self defense by a preponderance of the evidence, he has no hope of meeting the higher standard of beyond a reasonable doubt. Once a case has been ruled self defense, it’s over. Neither the prosecutor nor a plaintiff is permitted to pursue it farther.
RE: ““If a parent picks up their child from school and they forgot their firearm and someone sees it and complains, they should be covered by Second Amendment immunity,” she said. “The same goes for other gun-free-zone prosecutions where there was no knowledge or intent.””
If a parent picks up their child from school and forgot their firearm and someone sees it did the parent leave the firearm on the home porch or where else for someone to see it? And those behind Gun Free Zones need to be prosecuted for misleading gullible parents like those parents in Sandy Hook who blamed an inanimate object instead of holding those who led them into a false sense of security liable for all damages.
Repeat 10 times…”Defensive use of a firearm requires both feet being planted in bounds with the law.”
Do not become the kind of individual who pulls the trigger and allows the, “burden to shift to the prosecutors and the courts.”
I understand your point, but in the moment in which I have to make the decision to either die at the hands of an attacker or survive to come home to my wife, I won’t be thinking so much in regards to what my State’s Penal Code says. If I genuinely fear for my life in that specific moment that required defensive action, then I’ll take that action and worry about lawyers later.
Natural Law is absolute, and both precedes and supersedes Man’s written law, which can change based upon the whims of men dressed in black robes.
I suggest you follow my don’t look a gift horse in the mouth free advice Haz unless you are willing to kiss it all goodbye and spend time among hundreds of perps just like the one you smoked. It”s serious nuts and bolts with zero room for “jump the gun” errors…especially with witnesses, video tapes, etc.
And you want to at least look like you knew what you were doing when speaking to detectives who may appear to like you while they like their jobs much better, etc.
Most of us who carry everywhere haev taken the time/money ti become fairly well informed in these matters. We read, we study, we researh, we talk together, we oftem spend money and take classes on these matters. Most of have a pretty solid sense of where the outer imits are. And we work hard to stay well within them. If worst comes down, and we MUST fire, we will perhaps not say much to the on scene investigators, but spend time remembering the details, state of mind “in the firre”, our unndertanding of the relevant laws, setc.
I followed the Kyle trial very closely, and watched as the Suits dissected Wisconsin lws regarding possession and use of firearms, and it was enlightening. The attempt to nail him on “underage possession” was disgusting, they were trying to prove he was a lawbreaker and shoiuld never have had that weapon in the first place. BUT they had carefully researched the law even before that rifle was purchased, and had ALL the bases covered. Mush to the utter dismay and disappointment of the prosecutore Dingbat.
I absolutely LOVED the lok in Binger’s ugly mug as his star witness declared on the stand that he did in fact possess a a handgun, (he was thus committing a federal felony being a felon un unlawfu possession of a firearm) and thatKyle did not fu\ire upon him untilhe, the star witness had drawn that handgun and was aiming at Kyle’s head, thus PROVING Kyle ONLY fired in self defense, one round, which stopped the threat (by virtue of having vapourised the gunman’s gun hand. could not hold onto the pistol any more). The lok on Bnger’s Mugly Ugg is SO amazing to see…….
Educate yourself about the laws in YOUR state, and any state into which you travel (and avoid at all costs travelling into some states wiht yur firearms under any sircumstances.. NJ demands yuo have a FOID card, which they will not issue to non-residents. Catch 22 or what?
“he was a lawbreaker and shoiuld never have had that weapon in the first place“
He was in unlawful possession of the AR 15, he had provided money to his friend Dominick black to buy the firearm because Cal was underage, that conspiring and executing a strawman purchase, illegal under both Wisconsin and federal law.
“I got my $1,200 from the coronavirus Illinois unemployment because I was on furlough from YMCA, and I got my first unemployment check, so I was like, ‘Oh, I’ll use this to buy it,'” Rittenhouse said in his first jailhouse interview.
He wasn’t old enough to purchase the weapon himself. Authorities allege that he had a friend in Kenosha buy the AR-15 and hold it for him in Wisconsin.
Rittenhouse — who lived across the state line just 20 miles away — said he was out on the streets of Kenosha in southeast Wisconsin on Aug. 25 to protect local businesses and render medical aid during protests.“
https://www.nbcnews.com/news/amp/ncna1248290
“He was in unlawful possession of the AR 15, he had provided money to his friend Dominick black to buy the firearm because Cal was underage, that conspiring and executing a strawman purchase, illegal under both Wisconsin and federal law.”
Yay, you can quote inaccurate talking points!
In actual fact, as most legal commentators who read the laws in question realizing (and publicly posted) months in advance, A) what was done was NOT a “straw purchase” according to the actual laws in question, B) he was not in unlawful possession of the firearm.
These points are not hard to understand if you actually check the laws in question.
And as such, the judge threw out the charge related to unlawful possession, and no straw purchase charges were even brought against Kyle. The charges pending against the man who bought (and continued to *own and retain possession of*) the gun in question are just a politically charged and dishonest as the ones brought against Kyle in the first place.
Every shooting, no matter how righteous and just, has a non-zero chance of. being brought to a jury and resulting in a conviction.
Thus, no matter what the situation is, you always have to ask yourself “is this worth the risk of getting killed, or being put into jail?” Yes, sometimes the answer is “no, I shouldn’t do that”, but sometimes the answer is “Yes, I should.”
And sometimes that means breaking some stupid “No Guns Zone” law that doesn’t actually prevent shootings, but can prevent otherwise law-abiding people from stopping those shootings.
“At this point, the burden shifts to the prosecutors, who must then prove” …
Yeah, it’s not like it’s *supposed* to be the state’s burden to prove guilt! Heaven forbid that the accused be presumed innocent or something archaic like that.
Kind of playing devil’s advocate here but (generally) if you admit to the act but not the crime then the burden of proof shifts. You are not presumed innocent if you admit to an act that is usually illegal.
Shooting people is not normally legal. Self-defense is an exception and if you invoke that exception then the burden of proof is on you. That same holds true for other crimes if you claim entrapment or some other exception. That is my understanding of it anyway. It would be nice if some actually attorneys would chime in.
The system in Florida appears to set up a separate legal “track” or tribunal if stand your grand is claimed. Other such “tracks” exist for family law, gambling disputes, etc. Those are usually for civil law but the same idea applies.
You are much mistaken. Back to the Kule trial.. the state had the burden to PROVE beyond a reasonable doubt FOUR aspects or conditioins that MUST be met before Kyle’s firing that weapon became justified. HE claimed “slef defense”, thus the State must PROve all four of those aspects to destroy his claim of self-defense. He was rightly prseumed innocent, and AtG Binger never could prove any one of the four, all four being necessary. Any “leg” not being firmly etablished means the whole deifice wrecks.. and he walks. As it should be.
I am not sure what you are referring to. I was not stating anything about the rittenhouse trial. Which I believe was clearly a case of self defense. Just stating that in many jurisdictions if you admit to the act then some of the burden comes back on you. I am not even saying that is the way things should be. Florida might be different and I will freely admit that I am not an attorney. The point is in some legal systems or schools of thought there are instances where the general presumption of innocence does not apply.
Yeah Eric, that was my reaction as well, however when self defense insurance became available here I signed up along with the expansion to cover me when traveling to other states. I seldom travel into Atlanta proper, without that insurance I would never go there. Not only is the city far more dangerous, they have very woke prosecutors who would love another scalp for their trophy wall, especially one from a white guy who lives outside the perimeter.
“Yeah, it’s not like it’s *supposed* to be the state’s burden to prove guilt! ”
Trying to reduce self-defense to a short sentence creates quite the challenge. Yes, the burden of proof is always on the state/prosecution. The difference is that the prosecution must shift its trial strategy from proving homicide, to proving lack of justification. Thus, shorthand becomes, “shifts the burden of proof”.
Eric (and all the other commenters on this topic),
Almost, and not quite. The “burden of proof” to prove the underlying crime is ALWAYS on the prosecution, as our system was intended. Even if the facts show that the defendant in fact committed the actions constituting the crime, the defendant can still assert a defense (in this case, self-defense). Kyle admitted (not like he had a choice, he was on about a million videotapes!) he shot the goblins, but asserted a DEFENSE that he was justified in doing so in self-defense. Once a defense is asserted, the burden of proving that he had a reasonable fear for his life, etc., shifts to him (i.e., the otherwise criminal act is admitted, but his defense is justification, HE has to prove the justification).
Now, here’s where the cheese starts to get binding. What is the standard of proof? Well, in general, all the defendant has to do is present enough evidence to overcome the “reasonable doubt” standard – obviously, a lesser standard.
“Stand your ground”, “self-defense”, “castle doctrine”, etc., are all DEFENSES to a charge of murder/manslaughter for the act of shooting another human being and killing them. If you shoot someone and kill them, it is presumptively a crime. The cops/DA have the burden of proof to show you met all the elements of the crime of murder/manslaughter beyond a reasonable doubt. You can assert MANY defenses – diminished capacity, mental incompetence, exigent circumstances, self-defense, etc. Once you assert the defense, YOU have to prove that you met the standards for that defense.
Easy example is my former state of the People’s Democratic Republic of KKKalifornia. KKKalifornia has a duty to retreat, a duty to use minimum force necessary, etc., etc., et ad nauseum cetera. If you want to assert self-defense in KKKalifornia, good freakin’ luck. “Was there any way you could have retreated? Were there any other responses, less than lethal, you could have employed?” You get the idea. And given the “quality” of the DAs that benighted state is saddled with, they ARE going to prosecute, even in a situation LESS straightforward than Kyle. And then you assert your defense, and try to convince 12 California welfare recipients to acquit you.
Didn’t read the whole thing, but my point which is apparently being missed by a few here is only that this was phrased as though it was unusual or even shocking to make the prosecutor prove that an act was criminal.
To see who hates liberty in general just observe who complains about this idea even existing let alone having a chance in hell of ever passing.
Better to just get rid of the “gun free” zones all together. Not try to excuse them for an infringement.
I am all for this law, and extending it to other cases.
All states should have this, although I doubt that will happen.
It would certainly stop outlandish cases, like the Rightenhouse trial from ever happening.
And if it did, it would be over before it started.
Over zealous DA’s will be put in check.
Where I live if you shoot somebody for stealing chickens its okay.
The cops just get mad if you shoot them to hard and dont give them a chance to crawl off and die somewhere.
Paper work paper work.
Like Dad always said, ” Gut shootem boy, then they’ll run back to where they come from and we ain’t gotta bury em.”
Yeah, possum, but then you don’t get the carcass!
Dogs won’t eat it, why would possum want the carcass? It will just attract more vermin.
Now, Paul, don’t be . . . what would that be called? . . . let’s just use “speciest”. Many people consider possums “varmints” (not me, possum, I promise!!). Some would consider possum’s presence on our forum as “attracting vermin”.
I don’t judge (anyone except Leftist/fascists like MinorIQ, dacian the stupid, etc.).
Ha! I like yer Dad. Never met him but I like him.
It’d be nice if something like this could protect victims like Shaneen Allen from being jammed up by totalitarian gestapo for not having regime approved paperwork.
Alabama man to keep anti-Biden plate after state reversal > https://www.charlotteobserver.com/news/nation-world/national/article259454294.html?msclkid=3e9bce85a56011ec91df0b1368ba3fb4
“The state of Alabama decided to let a gun store owner keep a personalized license plate that represents an obscene slur against President Joe Biden, and apologized for trying to take it away.”
These types of gun free zones are one of the things that creates restrictions for Texans.
Most states that issue Mother May I Cards include in the related laws, etc, that those who have that Card are exempt from prosecution in many (specifically named) locations where without it they would be violaitng the laws. Mys state, at least until recently it may hav echanged, and they never inform us when they do that) my Mother May I Card actually exempts me from criminal action if I were to walk into a schoolbuilding to pick up my own child, when I am armed. Yes, inside the building, students etc all over the place.
my kids will NEVER attend a gummit skewl, so that’s not a pus for me.. other areas are also “free” to me when I have the Mother May I Card.
It is also good to be aware of your own stat’s laws regarding “criminal resspass” involved when an area is posted “no guns” and I carry in there anyway. State law is VERY specific regarding signage, its form and lacement relative to [ublic entrances. Harly anyone complies, thus the cute little boack Glocks wiht the red circle and slash are meaningless. Banks, etc, have them most lilkey as a sop to their insurance company or board of directors. But they carry NO binding prohibition. So I scrupuously ignore them everywhere. Worst case, the owner/manager of the venue might “make” me and demand I remove my firearm from their premises. Once I do he cannot stop me from returning (though WHY would I go back in there and apsnd my money after being trated like that? At least I have optioins…..
I know another aspect used by the anti gun folks is the old prohibition of firearms in Dodge City and other cattle/boom towns. Although they ignore the fact that such prohibitions were aimed at seasonal visitors like trail hand cowboys or gamblers. Most residents, or townsfolk would just pocket their pistols or slip it into their waistband under a coat.
Most of us out here in the real world understand those who would commit their crimes are going to do so where they believe there is little to no risk to themselves. Those very target rich gun free zones.
Again, most of us who carry legally have no desire to ever have to even consider actually using our weapons. And the majority of us have had at least some education on the legal requirements and possible consequences of using our weapon in self defense.
Someone asked me a few years ago why I carry a gun.
Because I’m to slow to run. To tired to fight. And too old to take a whupping.
“such prohibitions were aimed at seasonal visitors“
Yes, the old ‘selective enforcement’ violation of American civil liberties.
Just like the ‘sundown towns’, and ‘no Irish need apply’.
Two days ago I overheard a conversation between two people at a place I stopped for breakfast. I see them in there frequently, they work just across the state line and stop for breakfast there sometimes on the way to work. They were carrying on their conversation like they were the only two people in the world and not worried about being overheard, that’s not unusual for them. One of them talked about how their mini-mall area where they worked across the state line was now a gun-free zone as of that day and employees working in the stores there could no longer be armed and any employee that was armed would be fired and they were told this would keep the mini-mall free of gun crime and shootings, and how they would need to leave their guns locked up in the car fearing they might be fired if they were found carrying it at work. I could not help but from laughing and spewed a mouth full of coffee in doing so.
I told them; “gun free zones” are the stupidest concept ever when it comes to crime. The concept is that a “gun free zone” somehow magically repels criminals like garlic and crosses supposedly repel the traditional ‘movie’ vampire. Its a stupid idea that an area is safe from gun crime because its a ‘gun free zone’.
About an hour ago I was finishing up my breakfast at the same place. In walk these same two people again. One of them told me their store in their ‘gun free zone’ mini-mall was held up that same day the mini-mall became a ‘gun free zone’ and none of the employees were armed. One customer got wounded when they walked in and their first action was to shoot someone before proceeding with the robbery.
“I told them; “gun free zones” are the stupidest concept ever when it comes to crime. ”
Well, I WAS going to commit several massive felonies (armed robbery at a minimum, probably some assault with a deadly weapon with intent, that kind of thing), but there’s this sign that I’m not supposed to bring my gun, and goodness, it’s not like I’m a *CRIMINAL*, so I guess I won’t do those things.
/sarc, for the dense
Having a “gun free zone” without both obvious and hidden armed security is a giant “come rob us, we’re all unarmed!” sign.
There is, in fact, one possible set of factual circumstances where it would be warranted, actually: a world where firearms accidents are significantly more common than violent crime. Of course, in such a world, there would be very few firearms to begin with, as so few people would feel the need for them, but it’s not literally *impossible*.
But then, those are not **REMOTELY** the facts of our world, so…..
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