Wednesday, March 20, 2013

BRINGING SOME SANITY TO "STAND YOUR GROUND"


In previous posts I have made it clear that I think "Stand Your Ground" (SYG) is wrong-headed and promotes needless killing. The political climate is such that it is highly unlikely it will be repealed any time soon, but there are some hopeful signs that some of the excesses of SYG will be repaired in this session of the legislature. Here are a couple of Senate bills which speak to the issue:

SB 136 does several things:


 (1) It repeals the current language in the statute which warns the police against making arrests when SYG is invoked by the shooter. If the police believe they have probable cause to make an arrest, they would be free to do so without fear of running afoul of the SYG law. This seems to me to be a sensible improvement.


 (2) It makes it clear that if you start a fight, you cannot stand your ground. This seems to me to be a common-sense amendment to the current law.

(3) It makes it clear that although you have a duty to retreat, you have no privilege to attack. It strictly prohibits chasing people down to shoot them while "standing your ground." If they run away, you have won, no need to kill them. This makes perfect sense to me.

(4) It sets up a commission to collect data on SYG cases and regularly report their findings to the legislature. Again, this seems sensible. If the data shows people are being needlessly killed, then the law can be further amended.


You can read SB 331 at http://www.flsenate.gov/Session/Bill/2013/0136/BillText/Filed/HTML

 Red language in the statute is language that is being removed. Green language is language that is being added.

SB 362 proposes some needed changes to SYG as well.

(1) It makes it clear that the person you shoot has to be doing something aggressive toward you beyond frowning and yelling insults.

(2) It allows innocent bystanders who get shot to sue the shooter. Now they arguably can't because the law gives the shooter immunity from civil suit.

 You can read the bill at http://www.flsenate.gov/Session/Bill/2013/0362/BillText/Filed/HTML

There are similar bills pending before the House, and I heartily endorse them.

HOWEVER there is at least one proposed SYG amendment that is so far out in left field that it is no longer in the ballpark. HB 799 proposes some changes to the law which are obviously unconstitutional.

(1) Whenever a shooter who kills someone claims self defense, he MUST be carried to jail.

(2) He must stay in jail until the Florida Department of Law Enforcement decides that he was justified in shooting.

(3) If the FDLE decides that he acted unlawfully, that finding can be used in evidence against the shooter at the criminal trial.


 You can read this bill at http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0799__.docx&DocumentType=Bill&BillNumber=0799&Session=2013

HB 799 is unconstitutional for the following reasons:

(1) It seems to mandate that someone who uses a firearm in self defense must be arrested regardless of whether the investigating agency feels the arrest is justified. The constitution requires that probable cause exist prior to arresting for a crime. The bill never mentions probable cause, thereby sanctioning the unconstitutional imprisonment of innocent people.

(2) It seems to usurp the power of judges to set bail by mandating that arrestees remain in jail until the Florida Department of Law Enforcement investigates the case and concludes that force was justified. Defendants have a constitutional right to bail, and this bill seeks to deprive them of it. Defendants have a constitutional right to have a neutral and detached magistrate determine whether they should remain incarcerated after arrest. The Florida Department of Law Enforcement, although a fine police agency, is not and cannot be a neutral and detached magistrate.

(3) It creates an unconstitutional exception to the hearsay rule by making the findings of the Department of Law Enforcement admissible at a criminal trial. A criminal investigation is not a judicial proceeding, and the hearsay findings of a nonjudicial agency (which has not allowed the accused to confront and cross examine the witnesses it has relied upon) have no place in evidence before a jury.  

These objections leaped out at me upon a cursory reading of the bill, I am sure a detailed reading will reveal further flaws.

The NRA probably won't kick me out of the association because I wrote this blog, but I wouldn't be surprised if they took me off the mailing list for their legislative updates.