“He was advancing at me after telling me he was going to kill me. I could turn around and run, but I didn’t know if he could run faster than me, or maybe he had a gun, maybe he had a knife he could throw, or pick up a rock and throw at me. If he did any of that, I could have been killed. So I shot him.”
In a “duty to retreat” world, this defendant is toast.
Did you learn how to do that from NBC/MSNBC’s reporting/spin of the GZ case?
I actually made that joke at a journal club in grad school years ago, but I’m available as a statistical consultant if they need me.
*In a taped interview aired Friday on ABC’s “Good Morning America,” juror B29 said jurors couldn’t find enough evidence under Florida law to convict the neighborhood watch volunteer in the February 2012 death.
The juror agreed to let ABC show her face and use her first name, Maddy. She says she “fought to the end” but stands by the verdict returned earlier this month by the six-member, all-woman jury*.
Apparently, Maddy, isn’t going to change her vote of “not guilty”.
All you have identified is that it is not always possible safely to retreat; an eventuality that the rule of retreat, which requires it only when it is safe to do so, already contemplates.
Yes, if you attempt to retreat, and your assailant continues to pursue, you will have established that there was no safe means of retreat and deadly force is permissible. What the law also acknowledges is that the impossibility of safe retreat is not so certain that we should eliminate (at the expense of licensing needless escalation of these encounters) the rule of retreat prospectively for all situations. That is, the lawfulness of deadly force, because it is such an awesome allowance, turns on the actual facts of the specific encouter and not general surmises about these types of encounters as a class (particularly noting how multifarious they are; crimes are hardly all alike).
Except you have to prove that it was not possible safely to retreat - proof that may not be available as I have shown.
So you have to allow him to continue to pursue while you turn your back to him, to make it a bit more convenient for him.
Is there no consideration of proportion, here? If someone belabors you with a Nerf bat, Shirely you are not entitled to gun him down, even if no retreat is possible?
Just remember to say “He’s comin’ right at me!” first.
As you are quite aware, it has nothing to do with the assailant’s convenience and everything to do with imposing obligations calculated to reduce the social ill of pretextual allegations of self defense in scenarios that have a good probability of having the defendant being the only party who can testify to the events at issue. Do you see why we might want to disfavor legally the creation of these scenarios if we care about the effective administration of justice?
And for the “reducing the social ill” you will cause the person to get killed instead of defending himself, because instead of shooting the assailant he will “try to retreat”.
Or maybe he’ll just retreat in safety, and then the assailant can be prosecuted for attempted murder. (By the way, if every attempted murder must necessarily succeed or be foiled by deadly self-defensive force, which seems to be your belief, how is it possible that we still have prosecutions for attempted murder?)
Or maybe we’ll find out that the alleged victim never actually was imperiled with death or serious bodily harm, which we would not have found out, had we allowed the alleged victim to avail himself of deadly force without having exhaust all safe avenues of retreat and thereby (by killing the purported assailant) never have gotten that counterveiling evidence. What do you make of situations where the defendant alleges self defense, and that allegation is not credited? Surely you must understand that not every allegation of self defense is true. And guess what, when a person is convicted, despite allegations of self defense, the victim remains dead.
Or perhaps you think these two scenarios are mere figments of my imagination.
No, they are possible. As is mine possible. When I said that your law would result in that person getting killed because he tried to retreat, that didn’t mean other cases may not have different outcomes. But to that person that was killed because he tried to retreat, following the law you’re in favor of was definitely detrimental. So he dies - to “reduce social ill”.
So the question is: Does the danger of misbegotten retreats (with deadly outcomes) outweigh the danger of letting pretextual claimants of self defense get away with murder.
SYG is a relatively new law, coming into vogue only in the last 10 to 15 years. I reject the claim that our society has become appreciably more murderous. So it seems to me that we had retreat plus Castle Doctrine (and I support that) for generations, and yet, most people were able to live out their lives without getting murdered. Meanwhile, SYG has led to a number of cases where, by virtue of prospectively killing future unhelpful witnesses, the perception (and, let’s face it, the actual fact) that people have been able to get away with murder. (Not necessarily Zimmerman, either; recall Martin Hyde’s description of the deadly West Virginia bar fight upthread.)
Bad example. There was an eyewitness to the whole shebang standing mere feet from where it happened in that case. Same with other SYG cases I have seen - in fact, the one where the guy was killed after swinging a bag of radios at his killer was videotaped. Want to give me a cite where it was won “by virtue of prospectively killing future unhelpful witnesses”?
No, it’s not a bad example. It’s a very good example as to how SYG created a situation where a relatively clear-cut legal outcome (defendant was not in a place where Castle Doctrine applied, made no attempt to retreat, therefore has no license to use self defense) was elimated and replaced with a more nebulous factual question (was defendant reasonably afraid of death or serious bodily harm) — a question so nebulous that even the testimony of other eyewitnesses couldn’t keep the jury from going astray (let’s call a spade a spade: the jury got this one totally wrong).
Imagine, now, if there had been no other witnesses. Now we can expect an even worse quality of deliberations.
This is what retreat plus Castle Doctrine does: it allows us to focus our consideration on more objective facts (was it possible safely to retreat? did the defendant attempt this first?) instead of more opaque questions of what did the defendant believe at the time and was it reasonable? and is this what he really believed at the time or is it just a pretext perfected over the time between arrest and trial and maybe “guided” by others who are knowledgeable about the law?
So, all I gotta do to off that creep of a brother-in-law is get myself a concealed carry, get alone with him with me standing in a corner, no witnesses, and say “Hey, hand me that hammer there, will ya?” and plug him. SYG. Prove it wasn’t.
And if that can occur to a kumbaya hippy like me, who else has had a similar thought?
(For the record, I don’t actually have a brother-in-law…)
The question is far from nebulous. Each member of the jury should ask himself - if I was in the situation I believe from all the evidence the defendant was in - would I (as a presumably reasonable person, since I was selected to be on the jury) feel fear of death or serious bodily harm.
That is no more objective than the fear of death/harm question. It is not the question of was it actually possible to retreat. It is whether a reasonable person, put in that situation, would feel it was safer to retreat than to defend himself. (Example: “Yes, the guy’s gun was a toy, so it was safe to retreat, but the defendant had no way of knowing that”). Again, same type of question. And more ground for jury to get it wrong.
Not that anyone owes me an answer, but just in case this question was missed on a prior page:
Kimmy or Bricker (or Terr), in your opinion, was SYG a factor in this case? It has been described as a complete irrelevancy and by others as a key element of the Zimmerman case, a law that RELATIVE TO THIS CASE should be repealed so that such an outcome could be avoided in the future. I would appreciate any expert reaction. Hell, I’d appreciate expert speculation. Your assistance in fighting ignorance (mine) would be appreciated.
SYG wasn’t a factor in the trial. The immunity provisions of Florida self-defense law, which for a time were being classified (erroneously) under the rubric of SYG, were responsible for the initial decision not to arrest.
I’ll also add that Zimmerman was knowledgeable about murder and self-defense law and seems to have inferred from his understanding of it a belief that Florida law did not discourage confrontation (an inference no doubt helped by giving Hollywood-esque nicknames to different legal rules). So SYG is bad not only in terms of its intended outcome (elevating saving face over life preservation) and in terms of making it easier to concoct bogus self-defense claims, but also in communicating social values (as one function of the law is to do) that encourages shoot-first-ask-questions-later thinking.
This is a point I’m confused on, I thought that it was standard self-defense law that a defendant who demonstrates a self defense claim to the preponderance of the evidence basically gets acquitted unless the prosecution can somehow essentially disprove the self defense claim beyond a reasonable doubt (basically unraveling the self defense claim as it was made.) But after reading some posts in this thread and looking up some statutes, it would appear some are saying that the whole preponderance of the evidence thing isn’t part of your typical self defense law and that instead a “scintilla of evidence” of self defense must be disproven by the prosecution.
This doesn’t really jibe with what I read, for example in the Ohio self defense law it specifically mentions preponderance of the evidence:
So what is the actual common law “norm” for self defense?