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Tuesday, July 16, 2013

Eric Holder Calls for a Reexamination of Stand Your Ground Laws

     There has been some disagreement on how important or unimportant Stand Your Ground was to Zimmerman's acquittal. Many claim that is wasn't at all important and that the self-defense laws of Florida are not very different from elsewhere. 

      http://diaryofarepublicanhater.blogspot.com/2013/07/is-george-zimmermans-acquittal-about.html

       Eugene Volokh argues that in fact the law of self-defense is the same in Florida as the rest of the country-with the exception of Ohio.

     "Who should bear the burden of proving or disproving self-defense in criminal cases, and by what quantum (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt), is an interesting question. But on this point, Florida law is precisely the same as in nearly all other states: In 49 of the 50 states, once the defense introducing any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt."

     "This wasn’t always the rule. The English common law rule at the time of the Framing was that the defense must prove self-defense by a preponderance of the evidence, and Ohio still follows that rule; the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused is constitutional. But to my knowledge, only Ohio still takes the view — all the other states do not."


It's true in addition that the defense didn't explicitly request a hearing for SYG. However, upon examining the jury instructions received it's hard to argue that SYG did not singificantly raise the bar that the prosecution had to get over. Compare the jury instructions prior to the Florida legislature passed SYG in 2010 with the instructions given to this jury:

 "Here is the actual jury instruction read to Florida juries prior to the legislature’s enactment of Stand Your Ground."

“The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force. “

       "Here is the actual instruction that was read to the Zimmerman Jury:

“If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”

This the point made by Attorney General Eric Holder today in calling for a review of SYG:

"These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if – and the ‘if’ is important – no safe retreat is available," Holder said at the 2013 NAACP Convention Tuesday. "But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely."

     “By allowing—and perhaps encouraging—violent situations to escalate in public, such laws undermine public safety.  The list of resulting tragedies is long and, unfortunately, has victimized too many who are innocent," he continued. “We must ‘stand our ground’ to ensure that our laws reduce violence, and take a hard look at laws that contribute to more violence than they prevent."


     This is essentially what the dispatcher asked Martin to do as well, though Patrick Sullivan tried to make much of the idea that this was a 'suggestion not an order.' 


     If you watch this whole video as Patrick asks you to, what you see is that the police dispatcher never gives 'orders' but 'suggestions' but this is a legal issue. During examination Noffke indicated that under no cirucmstances would he give an 'order' even if there were gunmen in the next room, he would strongly 'suggest' you leave the house but not 'order' you to. 

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