Wednesday, May 7, 2014

Stand Your Ground and the Slaughter of Innocents

Read this first. 
> Christian Science Monitor
 > By Patrik Jonsson, Staff writer
http://www.csmonitor.com/USA/Justice/2014/0501/Stand-your-ground-laws-Two-cases-may-suggest-limits-to-their-protections-video

Until this, I'd liked the Christian Science Monitor as one of the few remaining news sources that tried for a working balance between speed and accuracy. Apparently, Mr. Jonsson did all of his 'research' on the internet, borrowed from other media sources and only asked academic/political sources instead of talking to people who actually work with the subject.

My wife read this article to me and before she got to the second paragraph, I was
snarling, "BULLSHIT!"

Here's the first paragraph:
 > Two recent cases in Montana and Minnesota where homeowners appeared to
 > set traps before fatally shooting teenage intruders suggest that US
 > society may be drawing some limits on the controversial "stand your
 > ground" defense at the heart of major recent court cases, including
 > the shooting of Trayvon Martin.

First there is the difference between the castle doctrine and the stand your ground.

Starting with the general ideas: "Castle doctrine" means being INSIDE a residence you own or one you legally occupy
http://en.wikipedia.org/wiki/Castle_doctrine

"Stand your ground" laws apply to more general circumstances (i.e., being outside)
http://en.wikipedia.org/wiki/Stand-your-ground_law

Is there a lot of overlap between Castle and Stand? Yes. Are they different? Yep. Both came about because of prosecutorial 'interpretation' of Duty to Retreat
http://en.wikipedia.org/wiki/Duty_to_retreat

The reporter needed to know these three distinct elements before he sat his wobbly ass down his computer.

Why? Two points.

A) There is NO nationalized and homogenized standard. Each state words their laws and interprets them differently. (That's why I had to use Wikipedia, a source that's about as a reliable as Jell-O.)

B) Because these laws *have* a boatload of 'limits' on them already. And more than that each and every state interprets them differently. So Pudknocker there is comparing apples, envelopes, and fencing materials. The very least Bozo could have done was stayed inside the category of fruit make his comparisons.

Second, except for a specialized version in Texas, overwhelmingly life is given priority over property in the U.S. justice systems. Basically, you can't cap someone for just stealing property (we'll get to the Texas 'thaing' in a bit but there's limits on it too).

This is critical because it underlies the distinction between theft (the illegal taking of property)
http://www.lectlaw.com/def2/t085.htm
and robbery (the illegal taking of property by violence or the threat of violence)
http://www.lectlaw.com/def2/q170.htm

Putting that in simple terms, one is taking your stuff. The other one is that and is dangerous to you.

Oh BTW, 'justifiable' means something very specific in a legal context. Specifically, "Lucy, you have some 'splaining to do." It isn't just  saying, "I was in fear for my life" and pulling the trigger. Built into the definition is you gotta be able to provide a metric fuck ton of evidence that this conclusion was reasonable.
http://www.lectlaw.com/def/j060.htm

Third, where you *can* justifiably cap someone is when *you* are in immediate danger of death or grievous bodily injury. But now (and this is technically wrong) the burden of proof shifts to you. (It's actually production of evidence.) You must provide evidence the act was reasonable. That means show up with a boatload of evidence that your life was in danger when you took the life of another citizen.

Fourth, self defense is an affirmative defense. Again, not exactly right, but for laymen, "When you claim self defense, you are confessing to a crime." ("In the Name of Self Defense") But you are claiming there were extenuating circumstances, so you shouldn't get your pee-pee whacked.

In criminal cases, the burden of proof is on the state. The prosecution must prove you did it, how you did it and that you knew it was a crime. With a claim of self-defense the state doesn't have to prove you did it, you already said you did. After claiming self defense you have to convince the cops and court your actions were justified. And therefore not a crime.

Fifth, if your behavior in the incident (e.g., your participation in the creation and escalation), the manner you did it, lack of threat, or the circumstances undermine your justification, then you weren't acting in self defense. You *did* commit a crime.

For example, if I shoot someone who is swinging an ax and charging at me, I can reasonably claim self defense (immediate threat). However if I escape, return, drop a construction zip tie over his head, and leave him to strangle to death, I've just committed murder (premeditated). Conversely, if I'm robbing the person's store and he charges me with an ax, I can't claim self defense for shooting him because I was already committing a felony. Yeah, little details like that matter.

Oh yeah, with both the zip tie and the robbery — technically speaking — I could squeal self-defense all I want, but I'd still be charged with murder one. Just saying it doesn't make it true.

Take a look at those three scenarios, only in the first could stand your ground even remotely apply. The castle doctrine in none. This is a *big* part of the reason I'm having such a hard time with the journalist slopping these terms around like they're inter-fucking-changeable.

Sixth, both stand your ground and castle doctrine came about because of the way prosecutors were interpreting duty to retreat.

I have a saying, "Good ideas make bad laws." This makes more sense when you add in a quote from Lyndon Johnson: "You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered."

Retreat from violence is a good idea. Turn it into a legal requirement and you cause some major problems — like making it functionally illegal to defend yourself.

To give prosecutors some credit, a majority of claims of self-defense are bullshit. That wasn't what the person was doing. Then I will add when that's the case, it's a slam dunk for the prosecutor. Chalk another in the win box. (Really important for your career — especially when your boss is elected.)

The problem is that prosecutors were taking it too far. They were using duty to retreat to prosecute everyone, including actual self-defense cases. I know of a case in Massachusetts where a home invader broke into a woman's house, chased her upstairs, broke through the locked bedroom door, and was shot and killed by the woman. The prosecutor basically got her convicted for failing in her duty to retreat because she didn't climb out the window.

This kind of behavior by prosecutors is what started bringing forth stand your ground and castle doctrine laws (including Colorado's famous "Make My Day Law"). It wasn't that 'innocent' people were being killed, but innocent citizens were going to prison.

With the castle laws there's also is the added issue (and acceptance) of property law — especially when it comes to the expectation of safety within your own dwelling.

While we're here, let's talk about the increased risk of someone coming into your home when you're there. Start with home invasions, but don't stop there. A raw fucked-up reality is a good number of serial killers save all kinds of hassle and clean up by killing you in your own home. Same goes for a certain breed of violent serial rapists. The privacy of your home gives him privacy too. Also the only DNA and fingerprints he needs to clean up is his.

Eighth, neither castle doctrine nor stand your ground give anyone carte blanche. These are the limits I mentioned that are already in place.

Starting with the fact, there *still* has to be an immediate threat to you. If you find an intruder in your home, there is already a high presupposition of danger (and rightly so). That alone is not enough, however. If that guy turns  and bolts, you can't chase him down the hall and shoot him six times in the back, twice more to finish him off. By running, he was not offering you any threat, much less lethal force.

*Nor* as in the case in Minnesota —and as it's looking in Montana — can you lure someone(s) into a trap. If Dingleberry the Wonder Reporter had actually looked at the statutes, he'd have known these provisions already exist. And if he had then knowingly written this tripe it's deliberate deception and misinformation presented as 'news.'

Whereas, if someone breaks into your home in the middle of the night, you confront him and he charges you, that's a different story. But it is the addition of other behavior that creates more jeopardy (danger).
http://www.lectlaw.com/def/j035.htm

Here are some more limits. There was a hellacious fight in Colorado over does 'dwelling' include the garage. It was settled as attached yes, stand-alone no. Another thing that is up in the air is enclosed patios.

Legislators are having some problems with shooting through doors, though. As in, are you in immediate danger from someone on the other side of the door, especially if you have room to move out of the line of fire of anything comes through that door. Think the difference between your bedroom door versus the door to your garage.

I tell you all this so you'll understand when I say the standards in Florida are going to be different from California, Colorado, Texas, and New York. As they will be in Montana and Minnesota.

And that brings us back to the article. You can't compare cases by saying they are all under the same 'law,' when you're talking different state laws and interpretations. You really start stepping on your dick when you start using two separate concepts interchangeably.

Does Montana have a castle law? Does it include the garage? Was the garage attached or separate? These are just some of the already existing limits written into the castle laws. Now let's add other elements about use of lethal force. Because Markus Kaarma had a video feed in his garage, did he have prior knowledge the intruder was unarmed? Thereby unable to offer him a viable threat? Gee other behaviors, other considerations? Where have we seen that before?

The Minnesota case wasn't castle doctrine, it was flat out luring, ambush, and murder. That batshit motherfucker crossed the lines in about eighteen different ways. Which is why he went down. Castle doctrine doesn't allow for what he did. Oh gosh ... more limits. Whudda thunk?

I mentioned the Texas thaing. Force, up to and including lethal, is allowed under Texas law to protect property — especially at night (Section 9.41: PROTECTION OF ONE'S OWN PROPERTY)
http://codes.lp.findlaw.com/txstatutes/PE/2/9/D/9.41

This is why the violence against women opponents got their knickers in a knot over the acquittal of Ezikiel Gilbert for shooting the 'escort,' who had just ripped him off and was fleeing. They say he got away with murder. Uhhh, well, no. Under the Texas Penal Code, that is allowed. It wouldn't have been anywhere else, but that's what I'm talking about when I say it's important to look at how laws differ from state to state. As well how such laws are interpreted locally.

That's important because it starts out about property. Whereas, self defense starts with the threat to self, whether from robbery or other form of attack. Now you do have property rights. And often intervening with someone attempting to steal from you will result in danger and violence. But the situation has to morph to that before you can use force. Unless you're a Texan, the force you're using has to be in protection of yourself, not the property. And most of all, it must be appropriate to the threat you are facing. Damn, more limitations.

Person versus property is a not-so-subtle and important distinction. Starting with the fact you can't run out with intent to do or threaten violence to protect your property. This gets a lot of people, who charge outside with a bat, gun, or knife, into trouble in states other than Texas. I can't point a gun at someone for stealing my stuff. I can only point a gun at him for offering me a threat.

What I'm really going to rip is this journo's contention that the Zimmerman/Martin case had fuck all to do with any of this shit (other than to trigger people's emotional monkey brain reactions and get them stupid) but before that let's look at this little gem he wrote

 > The philosophy of self-defense and home defense have deep roots in
 > English common law and more-modern American jurisprudence. In 2005,
 > additional protections for self-defense began to emerge: That year
 > Florida became the first state to expand the castle doctrine - the
 > idea that one's home is one's castle - to include public spaces.

Okay, last time I checked, there was this really popular crime in Florida called 'carjacking.' It is a form of robbery, often exceedingly violent robbery. Like lots of people get killed or injured by carjackers.

The Florida 'expansion' of the castle doctrine included vehicles and someone trying to carjack you as you were getting into your vehicle. (Two common carjacking strategies involve running up, opening the door, and dragging you out of the car or jumping you as you're getting in or preparing to get in.) The key element here is violence being offered to you in or near your car. Florida prosecutors were having just a little too much fun and keeping their numbers up by prosecuting people who fought off carjackers by claiming they had a duty to retreat.

While stand your ground does apply to being attacked on the street, the castle doctrine doesn't. At least in states that haven't deemed your car as your castle. So once again, using these terms interchangeably? Wrong! Applying them to *all* states as if it's some kind of homogenized concept? Again, wrong.

Then Captain Dingleberry gives us this:

 > "If somebody breaks into your house in the middle of the night, the
 > presumption is you have the right to assume that they are armed and
 > intend to do you harm," says criminologist and gun policy expert
 > Edward Leddy, a professor emeritus at St. Leo University in Florida.
 > The question in the Minnesota and Montana cases, he says, is, "How
 > reasonable is that presumption? The problem is there's no clear-cut
 > answer to that. It depends on the situation and the reasonableness of
 > the person's fear."

Does what that 'criminologist and gun policy expert' say make more sense now? Although I agree with what the expert said, personally I'd have been more impressed if the writer had gotten it from an attorney instead of an academic. Ya know, like someone who actually deals with the interpretation and application of the laws? Such people often have other really important tidbits to add. But that leaves us with the question of would the journalist have even known why those extra distinctions were important? As of this moment, you certainly do.

Furthermore — and this may just because I'm a professional writer and I know the odor of spin when I smell it — slamming criminologist and gun policy 'expert' together in the same sentence creates a subconscious connection between criminals and guns. How far the reader takes this depends on how informed said reader is. But it's a real subtle and deniable way to imply that anyone with a gun is a criminal.

 > At least 22 states now have stand your ground laws, according to the
 > National Conference of State Legislatures, but all US states give wide
 > latitude to homeowners who kill intruders, as long as their fears of
 > injury were reasonable. Since the national uproar over the Martin
 > shooting, lawmakers in seven states have attempted unsuccessfully to
 > weaken or even repeal the new breed of self-defense laws.

Again, knowing what you know now, the first part of that should make more sense (even though they are quoting NCSL —who lost one of their only two registered Republicans when my wife left). It's the second part that's both sort of correct and what the fuck does that case have *anything* to do with the subject?

One of the reasons I take exception to that paragraph is the 'new breed of self-defense laws' comment. It would have been more accurate to say a return to old school interpretation of self-defense laws. The last 'new breed of self-defense law' was adding duty to retreat.

Another reason is that he's not reporting on the Martin/Zimmerman case, he's reporting on the media. The stand your ground law was *never* used in the Zimmerman case. The defense was presented *as* self defense. As in lethal force was justified because of an immediate threat of death or grievous bodily injury posed by Martin. That is why Zimmerman was found not guilty.

See, here's something that even the most career-driven, convict-them- all-let-god-sort-them- out prosecutor can't get around. When the attack is happening, duty to retreat is an unreasonable expectation. A duty to retreat (and by extension stand your ground) applies *before* the violence starts!

Could you have walked away? That is where duty to retreat and stand your ground become relevant. The reason it wasn't relevant to the Zimmerman case was he was getting the back of his head jack hammered on the concrete already! Oh, does getting your head pounded on concrete constitute an immediate danger of death or grievous bodily injury? To quote Bugs Bunny, "Cooooould beeeee"

The stand your ground angle was *entirely* a media creation. It was the media pundits and legal 'experts' called in by those pundits who introduced this concept to the Martin/Zimmerman 'narrative.' Not the actual case mind you, but the story and brouhaha that kicked up over it. Stand your ground was used to fill air time while pontificating about possible defenses. Stand your ground had nothing to do with the case itself, the laws he was tried under or why Zimmerman was found not guilty.

It was pontificating pundits that led politicians to make noises about repealing stand your ground  (that Cowboy Attitude is what killed that poor innocent child who was slamming Zimmerman's head on the concrete). Because of the media created the connection stand your ground is inextricably linked with the Zimmerman case in the minds of the public. The media didn't report the news. They made it. The author of this piece is perpetuating the falsehood.

 > "The terrible reality is that there's a certain percentage of the
 > population who do not look at these laws as protection but rather as
 > an opportunity," says Jonathan Turley, a law professor at George
 > Washington University.

True. But I notice this paragon of journalistic integrity and professionalism doesn't mention there's an even bigger segment of the population who qualifies as a professional and heavily armed criminal subclass and who thankfully mostly limit their violence and killing to each other, but are not above robbery and violence against innocent civilians. But that would have required talking to someone other than an academic or research deeper than other media sources.

Oh and while we're at it, except for the Japanese exchange student he's about to mention, what our champion of truth *doesn't* report is that everyone of these slain individuals were in the process of committing crimes.

 > The case in Montana has some similarities to a Louisiana incident in
 > 1992. In that earlier case, a Japanese exchange student, Yoshihiro
 > Hattori, was killed by a scared homeowner in Baton Rouge after he
 > knocked on the door, looking for a Halloween party. However, Louisiana
 > prosecutors declined to file charges.

Ummm you really gotta turn your head and squint to see 'similarities' between someone disregarding the order to"freeze," and being shot approaching an armed homeowner standing in his car port and Kaarma  leaving the garage door open as a baited trap. Then the Montana man running outside and around to the garage entrance and  opening fire on the guy he just cornered in his garage.

Uhhhh, they had garages and carports, they involved shooting of exchange students, but past that saying 'some similarities' is awfully fucking weak.

 > But in a potential sign of changing attitudes, prosecutors have
 > decided to go forward with charges in the Montana case. Prosecutors
 > say Mr. Kaarma had told his hairdresser that he was "ready to shoot
 > some [expletive] kid" after getting repeatedly burglarized.

Or maybe what the dipfuck Kaarma did was *not* self defense or castle doctrine, but premeditated laying a trap to murder.

Hey wait, don't most castle laws have provisions against that? If so, how are attitudes changing? Much less potentially?  Damn. There's that smell again.

 > Kaarma, prosecutors say, will have to prove that he could have been
 > killed or seriously hurt by the intruder. "The state doesn't believe
 > that Kaarma identified Dede as a threat to commit a forcible felony in
 > the garage," prosecutor Andrew Paul told the Missoulian newspaper in
 > Montana. "He actually sought Dede out by essentially trapping him in
 > the garage."

Wait. Is he quoting another newspaper as a source? Boy, he really did do his research. I wonder how many other quotes he got from other articles instead of directly from the source.

That aside though, does the prosecutor's statement about Kaarma make more sense knowing about affirmative defense, production of evidence, immediate threat, and  reasonable belief of danger?

One thing about the Montana case that is *not* mentioned in any of the sources I could find is whether or not the garage was attached to the house or a stand alone (including a breezeway). That would make a difference in Colorado, but I don't know about Montana.

Having said that. I don't know about you, but Montana kinda looks like another trap to me. This invalidates application of castle doctrine as a valid justification.  Ain't it just too bad there's no limits on these laws that allow for Wild West shoot outs and cold blooded murder of innocent children?

 > The Minnesota shooting, meanwhile, is similar to a 2007 Texas case in
 > which a man named Joe Horn corralled two burglars outside his home and
 > killed them on the front lawn. Mr. Horn had a clear understanding of
 > changes in the law that protected homeowners, which he discussed with
 > a dispatcher before he went outside and shot the men.
 > A Texas grand jury refused to bring charges against Horn.

Gee, you think that maybe the fact that it was in TEXAS! had anything to do with that last part? As in remember Penal code 9:41? HELLOOOOOoooo!

This kind of slipshod journalism and lexus-nexus search for making comparisons and finding quotes just pisses me off. It's become endemic in our 'need for speed' news media. That really hurts because like I said, until now the Christian Science Monitor really seemed to strive for presenting well researched articles.

Mutter, mutter, grumble, growl, mutter.

M

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