# Stand Your Ground hypotheticals **URL:** \ **Category:** Great Debates\ **Created:** [May 23, 2012, 6:22pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857 "2012-05-23T18:22:40Z")\ **Posts on this page:** 10\ **Page:** 7
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 7, 2012, 6:15am UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/122 "2012-06-07T06:15:41Z")
> [@Steophan](#): > > No, it isn’t. Murder requires malice and intent. It is not enough to simply prove that someone killed someone to prove murder. > > You are using the word murder, like the term self defence, without actually knowing what it means in a legal context. It must vary from state to state. I’m in New York and there’s no requirement of malice here. There is a requirement of intent but I don’t see how you can argue that wasn’t present in Zimmerman’s case: he pointed a gun at Martin and pulled the trigger - pretty hard to argue he didn’t intend to kill him. Now if you want to argue pre-meditation was absent, that I can accept. But pre-meditation, like malice, is not a legal requirement for murder. Now you’re saying, that’s New York, Nemo, this happened in Florida. So I checked Florida’s Penal Code and guess what? You’re even more wrong there. You can commit murder in Florida without malice or intent. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 7, 2012, 6:29am UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/123 "2012-06-07T06:29:35Z")
> [@Cheshire\_Human](#): > > So why, in my story, did the woman not have a right to shoot my ass (other than the fact that this is NY, and she had a duty to retreat)? She _felt_ threatened. > > Here’s the difference. What she _felt_ was unreasonable. There were plenty of innocent possibilities, and one of them was actually true. If she’d shot my ass, she would have killed a totally innocent person. Because she _felt_ threatened. Martin could no more slug Zimmerman, because of his feelings, than she could have shot me. > > His feelings were only important, if they were actually accurate assessments of reality. You are not allowed to slug someone, legally, unless they are an _actual_ threat to you. How you _feel_ about the situation is irrelevant. Yes, there is a reasonable standard involved. And that’s what we’re discussing. It’s not cut and dry. Reasonable is what a bunch of average people feel is appropriate in a given set of circumstances. As for the actual reality in Martin’s case - Zimmerman was following him, Zimmerman did have a gun, and Zimmerman did end up killing him. So I don’t think we can dismiss Martin’s hypothetical belief that Zimmerman posed a threat as merely imaginary. I’m not saying that Martin’s feelings were clearly reasonable. But that fact remains that Zimmerman did kill him. I don’t see how anyone can claim that a belief that Zimmerman was a danger to him was completely irrational. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 7, 2012, 12:12pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/124 "2012-06-07T12:12:47Z")
> [@Little\_Nemo](#): > > As for the actual reality in Martin’s case - Zimmerman was following him, Zimmerman did have a gun, and Zimmerman did end up killing him. So I don’t think we can dismiss Martin’s hypothetical belief that Zimmerman posed a threat as merely imaginary. If you abandon the “reasonable person” standard, as you are doing here, then you cannot dismiss Zimmerman’s notion that Martin posed a threat as merely imaginary, either. After all, according to Zimmerman, Martin committed attempted murder. The trouble is that, in neither case is it something a reasonable person would have done. It is not reasonable to punch someone in the face and bash their head on the ground if that someone asks you what you are doing in the neighborhood. It is not reasonable to shoot someone for being a stranger and acting suspiciously in your neighborhood. It _is_ reasonable to shoot someone if you are doing nothing wrong, and he punches you in the face and bashes your head into the ground to the extent that you are in fear of your life. It _is_ reasonable to punch someone who attacks you first, if you are doing nothing wrong. Therefore it is important to figure out who initiated the violence, because that person was in the wrong. Regards, Shodan ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [June 7, 2012, 2:05pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/125 "2012-06-07T14:05:51Z")
> [@Little\_Nemo](#): > > Now you’re saying, that’s New York, Nemo, this happened in Florida. So I checked Florida’s Penal Code and guess what? You’re even more wrong there. You can commit murder in Florida without malice or intent. In Florida, first degree murder requires either the intent to kill, or killing whilst in the commission of another felony. Second degree murder requires an act “imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual”, or the involvement in a felony crime. There is also third degree murder, which involves killing someone whilst committing different crimes. So, in each case, either premeditation or malice, or not just criminal intent but the actual commission of a crime, is involved. So no, shooting someone does not, in and of itself, count as any of these. In many cases, of course, it will be murder, but not all. [Cite](http://law.justia.com/codes/florida/2005/TitleXLVI/ch0782.html) for the laws in question. [Wiki cite](http://en.wikipedia.org/wiki/Murder#Exclusions) for situations where killing someone is not murder. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2012, 2:19pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/126 "2012-06-07T14:19:47Z")
> [@Little\_Nemo](#): > > Okay, we’re making progress. I asked this question a week ago - _“Is being followed a threat? Is being followed a threat in some circumstances but not others? What are those circumstances?”_ - and you avoided answering it until now. > > So you’re saying now that following a person does not constitute a threatening act. Where was that established? Was it in a statute? Was it established by precedent? Or does it just fail the reasonable person text? Good questions all, but again I must insist on precision. Being followed may well be a generically threatening act. But here, we’re talking about a threat to do violence, coupled with some word or act that creates a well-founded fear that such violence is imminent. So the question you’re asking is: _Does being followed constitute “a threat to do violence, coupled with some word or act that could make the person being followed believe violence was imminent?”_ Right? The answer is no. There must be some more specific act than simply following someone. We learn this by reasoning set forth in many different cases. For example, in _State v. Von Deck_, 607 So. 2d 1388 (Fl. 1992), the accused was charged with attempted premeditated murder of a law enforcement officer. During the trial, the state sought to instruct the jury on a lesser included offense of assault. Von Deck objected, pointing out that the evidence didn’t show any act that placed the officer in fear. > [@](#): > > **The state now argues that the element of “putting in fear” can be established by inference** , because a shooting is likely to create such fear. One district court case supports this position. Kimbrough. While this may be true in some cases, it will not be true in all. It is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission. **Florida law is well settled that the elements of an offense cannot be established by mere inference.** State v. Dye, 346 So.2d 538, 541 (Fla. 1977). (emphasis added) So it’s not enough that some people might think that being followed creates a threat to do violence, coupled with some word or act that creates a well-founded fear that such violence is imminent. The state has to show some specific act that specifically and reasonably communicates the threat of imminent violence. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2012, 2:26pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/127 "2012-06-07T14:26:39Z")
> [@Little\_Nemo](#): > > Yes, there is a reasonable standard involved. And that’s what we’re discussing. It’s not cut and dry. Reasonable is what a bunch of average people feel is appropriate in a given set of circumstances. Not exactly, or at least I wouldn’t phrase it that way. If that were so, then a jury verdict could never be set aside. But there are plenty of cases where a judge – or an appeals court – has said, “No reasonable jury could reach the result that you reached, so we’re throwing that result out.” A bunch of average people may make inferences they are not legally entitled to make. That’s why there is a baseline requirement for the record to reflect some competent evidence, not inference, on which the jury could rely. The jury can generally believe any piece of evidence that they hear. The judge cannot take that function away from them. But they can’t “connect the dots” any way they please, even if that’s what a bunch of average people would do. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 7, 2012, 4:37pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/128 "2012-06-07T16:37:37Z")
> [@Bricker](#): > > Not exactly, or at least I wouldn’t phrase it that way. > > If that were so, then a jury verdict could never be set aside. > > But there are plenty of cases where a judge – or an appeals court – has said, “No reasonable jury could reach the result that you reached, so we’re throwing that result out.” > > A bunch of average people may make inferences they are not legally entitled to make. > > That’s why there is a baseline requirement for the record to reflect some competent evidence, not inference, on which the jury could rely. > > The jury can generally believe any piece of evidence that they hear. The judge cannot take that function away from them. But they can’t “connect the dots” any way they please, even if that’s what a bunch of average people would do. In a situation like this, isn’t the judge essentially saying _“You guys are not a bunch of average reasonable people. A bunch of average reasonable people wouldn’t have given a verdict as dumb as you idiots just did.”_ Of course being a judge, he’d probably say this in a more polite manner. As for your other post, give me a chance to read the State v. Von Deck decision before I respond. Do you happen to have an online cite? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2012, 4:46pm UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/129 "2012-06-07T16:46:21Z")
> [@Little\_Nemo](#): > > In a situation like this, isn’t the judge essentially saying _“You guys are not a bunch of average reasonable people. A bunch of average reasonable people wouldn’t have given a verdict as dumb as you idiots just did.”_ > > Of course being a judge, he’d probably say this in a more polite manner. > > As for your other post, give me a chance to read the State v. Von Deck decision before I respond. Do you happen to have an online cite? It may not even be available on-line. Sorry. ☹ ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 8, 2012, 12:30am UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/130 "2012-06-08T00:30:10Z")
> [@Bricker](#): > > It may not even be available on-line. Sorry. ☹ I found it online (and also the Kimbrough and Dye decisions that were referred to in Von Deck - the internet’s a wonderful thing). That said I don’t think the precedent of these cases is relevant here. As I understand it, the issue in Von Deck was that the state did not establish that the victim was “put in fear” (which was an element of the offense) at the trial. It just assumed that being shot would be something that would put anyone in fear. The counter-argument was that while being shot was something that a person would be in fear of, the victim was not aware he was going to be shot so he couldn’t have been in fear of this. So the mere fact of being shot isn’t necessarily proof of being put in fear. Because the state didn’t introduce evidence that the victim was put in fear, they didn’t prove all elements of the offense. I feel this isn’t relevant for two reasons. The first is that there hasn’t been any trial. The Von Deck decision didn’t establish that the state couldn’t have shown the victim was put in fear; it said that it failed to do so. The state, having hopefully now learned from this mistake, will presumably establish the existence of fear at any trial in which it’s an element. The second issue is foreknowledge. The argument made in Von Deck was that the victim was not aware that he was going to be shot. There was no argument over whether this knowledge would have been sufficient to put the victim in fear if he had possessed it (and it was accepted it would have). The issue in this incident is different. Martin was aware he was being followed. You might make an argument that that knowledge wasn’t sufficient to reasonably put him in fear but you can’t argue that he didn’t possess that knowledge. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 8, 2012, 1:04am UTC](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857/131 "2012-06-08T01:04:31Z")
> [@Little\_Nemo](#): > > I found it online (and also the Kimbrough and Dye decisions that were referred to in Von Deck - the internet’s a wonderful thing). That said I don’t think the precedent of these cases is relevant here. > > As I understand it, the issue in Von Deck was that the state did not establish that the victim was “put in fear” (which was an element of the offense) at the trial. It just assumed that being shot would be something that would put anyone in fear. The counter-argument was that while being shot was something that a person would be in fear of, the victim was not aware he was going to be shot so he couldn’t have been in fear of this. So the mere fact of being shot isn’t necessarily proof of being put in fear. Because the state didn’t introduce evidence that the victim was put in fear, they didn’t prove all elements of the offense. > > I feel this isn’t relevant for two reasons. The first is that there hasn’t been any trial. The Von Deck decision didn’t establish that the state couldn’t have shown the victim was put in fear; it said that it failed to do so. The state, having hopefully now learned from this mistake, will presumably establish the existence of fear at any trial in which it’s an element. > > The second issue is foreknowledge. The argument made in Von Deck was that the victim was not aware that he was going to be shot. There was no argument over whether this knowledge would have been sufficient to put the victim in fear if he had possessed it (and it was accepted it would have). > > The issue in this incident is different. Martin was aware he was being followed. You might make an argument that that knowledge wasn’t sufficient to reasonably put him in fear but you can’t argue that he didn’t possess that knowledge. Yes, your summary of the cases is accurate. I quoted the case not to show how important it is to allege every element of the crime, but to supply an authority for my statement that inference can’t be used to find an element of the offense. That is what you need to address. What specific evidence could the jury rely on to show that Zimmerman did an act or spoke a word that threatened violence? [Previous page](https://boards.straightdope.com/t/stand-your-ground-hypotheticals/622857.md?page=6)