demagogue on 23/3/2012 at 01:09
Quote Posted by Nicker
(
http://www.bbc.co.uk/news/world-us-canada-17479308) Another Development.
Perhaps rather than requiring that charges be brought in order to investigate cases where a person uses force in their own defence, there should be a presumption that a crime may have been committed, so there can be less prejudicial treatment of incidents by police and no excuse to not investigate any of them.
For the record, legally speaking self-defense is an affirmative defense and falls under justification, which means the defendant admits he did the thing but it was justified, and the burden of proof is on him to give the evidence that self-defense holds, which is like saying the default presumption is the crime was committed (if the elements are beyond reasonable doubt, which they are) and the burden is on the defendant to prove his case (so if he doesn't, he still goes to jail, unlike proving the crime itself, whether the burden is on the prosecution & if they don't prove it the guy goes free). But I understand you're talking about the police going easy on the guy and not investigating it.
Nicker on 23/3/2012 at 03:35
Thank you for the clarification. I figured that might / should be the standard but some times it seems that all you need is to be a property owner and invoke self defence, then it's high-fives all around...
Sg3 on 23/3/2012 at 04:41
This is a bizarre and unusual case. Look at the other side of the coin. Presently, self-defense is very, very difficult to do without being treated, at least on some level, as a criminal.
If this man shot this boy without provocation, as has been implied, then of course he must be prosecuted for murder--I agree.
But that is beside my point: knee-jerk demands for self-defense to become even more difficult than it already is are not the answer. Is it a decent world were people are afraid to defend themselves? It is already so, and a great many people want it to be even more so, so that they can better pretend that they are safe from a less real threat.
Bear in mind that, at least according to some studies, five times as many crimes are stopped by civilian firearms as crimes are committed with firearms. The number of crimes committed with firearms legally carried is far less than even that fifth. This case is an extremely rare exception--it is almost unheard of for a crime to be committed with a concealed-carry permit. Don't throw out a large good with a small bad. What some of you are suggesting is the equivalent of nuking a country because a small group within that country attacked another country.
As for the law--you are all pointing at it in shock and horror, and decrying it as barbaric. But recall that particular law does not uphold or allow that man's actions. I am concerned that some of you may be feeling with your emotions rather than thinking with your minds, due to the distressing nature of this event.
Muzman on 23/3/2012 at 04:51
Quote Posted by demagogue
For the record, legally speaking self-defense is an affirmative defense and falls under justification, which means the defendant admits he did the thing but it was justified, and the burden of proof is on him to give the evidence that self-defense holds, which is like saying the default presumption is the crime was committed (if the elements are beyond reasonable doubt, which they are) and the burden is on the defendant to prove his case (so if he doesn't, he still goes to jail, unlike proving the crime itself, whether the burden is on the prosecution & if they don't prove it the guy goes free). But I understand you're talking about the police going easy on the guy and not investigating it.
I'm not sure I really understand it, but the thing about the Florida situation seems to be that it effectively shifts the burden of proof onto the prosecution.
The police chief had this to say in a press release:
Quote:
Why was George Zimmerman not arrested the night of the shooting?
When the Sanford Police Department arrived at the scene of the incident, Mr. Zimmerman provided a statement claiming he acted in self defense which at the time was supported by physical evidence and testimony. By Florida Statute, law enforcement was PROHIBITED from making an arrest based on the facts and circumstances they had at the time. Additionally, when any police officer makes an arrest for any reason, the officer MUST swear and affirm that he/she is making the arrest in good faith and with probable cause. If the arrest is done maliciously and in bad faith, the officer and the City may be held liable.
According to Florida Statute 776.032 : 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
So they won't arrest anyone who pulls this defense because he'll sue them if the case doesn't go down. Even though the facts at the scene were he had admitted to killing an unarmed teenager in the street.
You could argue there's still enough to go to trial with after a thorough investigation and pick him up later. But there was some other stat that since this law came in justifiable homicide cases went up some enormous number all over Florida and prosecutors have been losing court cases a lot. So it seems that if someone's pulling this defense right off the bat, the cops don't even bother any more because they won't win and open themselves to litigation if they lose. Thus most of the evidence seems to have been turned up by the media.
Someone reposted this comment on the New York Times response section that I thought was pretty good:
Quote:
One of the most radical ideas of our framers was the separation of powers. This meant, at a minimum, no person could be the judge of his own case. In the criminal justice system the functions of justice are placed into the hands of different organizations and people. However, the Florida law subverts this separation because it permits a licensed gun owner to become: the arresting officer, the investigating officer, the defense attorney, the prosecutor, the judge, the jury, the jailer, and in this case, the executioner. Obviously, the check on the abuse of powerof which the framers were deeply concerned is eliminated by the Florida law. In effect, that law as written asserts that there is no abuse of power if an armed citizen acts under what he believes is a threat requiring a resort to force. Thus we have citizens who have no training in recognizing threats much less defusing them have been empowered by a legislature to hold the power of life or death in their hands. The Supreme Court needs to rexamine the 2d amendment cases and strike a balance that protects those citizens who are threatened by legal gun owners, whose capacity to act reasonably is subject only to their will power and emotions which may or may not be under control.
That's a pretty good way of looking at it, I find. The pursuit of gun and self defense rights warps the tacit civic balance of power to the detriment of all civil actors (well, it would I guess, being arch individualism above all else). It's a bit of a tangent but could there be a constitutional argument against this sort of law? It'd be more spirit and precedent than black letter, from what I know of it (not very much).
WA has some pretty open self defense and property defense laws, but any vaguely unnatural death is, by law, automatically investigated fully as well. It seems that at least would go some way to fixing this particular situation. Currently it seems the dead have no rights.
Sg3 on 23/3/2012 at 04:55
Quote Posted by Muzman
WA has some pretty open self defense and property defense laws, but any vaguely unnatural death is, by law, automatically investigated fully as well. It seems that at least would go some way to fixing this particular situation.
This is only sane. But some here are suggesting, rather, that the defender be assumed to be a criminal. This makes self-defense even more difficult. People are already being hurt or killed because they're afraid to defend themselves, for fear of being prosecuted.
demagogue on 23/3/2012 at 04:57
You have to look at what the actual issue is though. The normal rule for self-defense is you have to make an attempt to run away or evade the threat against you first, and only if you can't safely escape the threat, or there are other people around also threatened you want to protect, are you justified to use proportional force back (even if you didn't run though, self-defense would still be a big mitigating circumstance and the jury could still acquit you IIRC). The 'stand your ground' law is just saying you don't have to even try to run away, even if there's a clear & safe route out. If you see the threat, you can shoot.
Saying the 'stand your ground' law is dumb isn't making a self-defense claim "harder", I think. You see some guy pull a gun on the street, no one else is around, and you stay in your car and drive on. There, was that so hard? And everybody else stays in their house (if he goes into a house, or possibly even on a lawn, then all bets are off and self-defense is always ok; you never have to run from your own house). But the whole debate doesn't even really fit this case anyway. It doesn't even look like this guy was standing any ground. It looks like he literally went after the kid to even put himself in harm's way (if he had been a threat), which I think even the 'stand your ground' law would say is going a little too far.
Edit:
Quote Posted by Muzman
I'm not sure I really understand it, but the thing about the Florida situation seems to be that it effectively shifts the burden of proof onto the prosecution.
Apples & oranges. In a *trial*, self-defense is most definitely an affirmative defense. It is *the* classic affirmative defense. Prosecution has the initial burden to prove the crime beyond reasonable doubt, then burden shifts to defense to prove affirmative defense that it was justified by self-defense (but I believe the standard of proof is lower, clear & convincing evidence?)
The part you're quoting is what the police are empowered to arrest for. I don't remember all the details, but IIRC the burden of proof just for an arrest is a lot lower. You just go to a grand jury and show them a few factoids that make a prima facie case and they get you an indictment that lets you bring charges and get the guy locked up and start the process for a trial. In that case, yes, the burden is on the prosecution, but it's a very low burden, anything even remotely making it look like it might not have been self-defense, any witness or the littlest fact would do. And for something going on right in front of a police officer, the burden is even lower... just if anything looks remotely suspicious about the situation is probably enough, and challenging it isn't that easy unless you have like 20 witnesses around that all have the same story and the officer is clearly going way over-board. But especially if the officer wasn't actually at the scene to see the event (the most likely scenario in most every case), just having the shooting at all is probably enough for an arrest and doing an investigation to get the facts straight.
Sg3 on 23/3/2012 at 05:06
Quote Posted by demagogue
The 'stand your ground' law is just saying you don't have to even try to run away, even if there's a clear & safe route out. If you see the threat, you can shoot.
Sounds fairly reasonable to me. Why should I have to endanger myself (by running away, thus making myself vulnerable) because someone else has decided to endanger me? "Clear & safe route" is rather open to debate.
Granted, so is "threat," but that's another discussion.
Quote Posted by demagogue
But the whole debate doesn't even really fit this case anyway. It doesn't even look like this guy was standing any ground.
Agreed. This case isn't what caused me to post, but rather what some of the people here have said about self-defense in general.
My experiences indicate that most people subconsciously think that they will never need to defend themselves, and so they take a harsh stance against self-defense. I find this both irrational and immoral. The tiny, tiny fraction of people who commit a crime and then claim self defense are no justification for hurting the much larger number of people who must legitimately defend themselves from being harmed or killed by an aggressor.
Muzman on 23/3/2012 at 05:07
Quote Posted by Sg3
Bear in mind that, at least according to some studies, five times as many crimes are stopped by civilian firearms as crimes are committed with firearms. The number of crimes committed with firearms legally carried is far less than even that fifth. This case is an extremely rare exception--it is almost unheard of for a crime to be committed with a concealed-carry permit. Don't throw out a large good with a small bad. What some of you are suggesting is the equivalent of nuking a country because a small group within that country attacked another country.
Yes, dismal dismal cherry-picked studies boosting the NRA position and ignoring that even where firearm possession is low, crime rates have been dropping. The gun lobby seeks to create enough fear so no one stops them from playing with their toys.
Your argument is silly anyway. The pro gun argument always goes straight to the threat of deadly force making the difference: you don't even have to use it, just having it can end a situation yadda yadda. Well this guy didn't even do that. The gun lobby themselves should be throwing him under the bus, but they haven't the strength of their own convictions. (although some Florida senators who support them actually do, which is nice)
Quote:
People are already being hurt or killed because they're afraid to defend themselves, for fear of being prosecuted.
I can't countenance that notion for a second. People in the heat of an attack are worried, not about stopping it, but getting prosecuted later? Where? Sweden?
Sg3 on 23/3/2012 at 05:12
Quote Posted by Muzman
Well this guy didn't even do that. The gun lobby themselves should be throwing him under the bus
I hope you're not implying that I am defending this guy at all. I am defending self-defense, not this man's aggressive murder which he falsely called self-defense (if what I am hearing is true). I believe I already stated this in one or more of my previous posts.
In past conversations on this subject, people have attributed to me stances which I do not hold, and which are contrary to those which I do hold. It is a result of them becoming emotional and jumping to conclusions. Most of the time, I suspect, they don't even bother to finish reading my post, but merely get hot and bothered about my view on Point A and then assume that my view on Point B fits their preconceived notions about what an A-sayer must also believe, even when I've said (in the part of my post that they didn't read) that my view on Point B matches their own view on Point B.
I hope that isn't happening here.
Quote Posted by Muzman
I can't countenance that notion for a second. People in the heat of an attack are worried, not about stopping it, but getting prosecuted later? Where? Sweden?
It's happened here in the U.S.A., and people have been seriously hurt or killed as a result. As I said, legal gun owners are often afraid to defend themselves because self-defense is viewed by most people as a crime.
At any rate, however, this is a silly debate, because Internet debates solve nothing. I have witness thousands of them, several hundred on this very subject of self-defense, and no good ever comes of them. I shouldn't have even posted in this thread to begin with. And with that thought, I depart for bed. Good night.
