Sunday, July 28, 2013

Misrepresentation of Stand Your Ground

Stand Your Ground is a legal concept that is being too often deliberately misrepresented. Charles Cooke at National Review  states it even more clearly: "By dint of an unholy marriage between genuine ignorance and political opportunism, the Zimmerman trial has this week led to a peculiar dispute as to the propriety of so-called Stand Your Ground rules."  Mr Cooke goes on with a very thorough and excellent analysis of stand your ground.  See also the review at Hot Air.

It is part of and an extension to the Castle Doctrine.
The legal concept of the inviolability of the home has been known in Western Civilization since the age of the Roman Republic. The term derives from the historic English common law dictum that "an Englishman's home is his castle." This concept was established as English law by 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628. The dictum was carried by colonists to the New World, who later removed "English" from the phrase, making it "a man's home is his castle", which thereby became simply the Castle Doctrine. The term has been used in England to imply a person's absolute right to exclude anyone from his home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.
What SYG does is add two key components to self defense legal definition.
1) That the right to defend yourself, without having to first retreat, where ever you have a right to be.  It is not lost simply because you are not on your home/property.  The lack of that right gave tremendous advantage to criminals.
2) Extension of statutes that shielded people from any criminal/civil suits for using force – including deadly force – against an invader of the home. Without that, people were too often driven to penury to provide their own legal defense by unreasonable prosecutions.

One of the misrepresentations is the deliberate misapplication of the Fourth Amendment "The right of the people to be secure in their persons" is often where they stop in their protestations.  However the application is evident from the reading of the entire amendment. It is protection from the government partaking in unreasonable searches and seizures without probable cause.

Another, and one of the more egregious, misrepresentation comes from President Barack Obama.  As one that lays claim to the title "Constitutional Lawyer" should know his statement is incorrect, said in a recent Nationally televised speech:
From American Thinker
And for those who resist that idea that we should think about something like these "stand your ground" laws, I just ask people to consider if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?
It is instructive to compare what Mr. Obama said to the facts, as stated by Florida's criminal code (emphasis is added):
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

"Stand your ground" does not, therefore, entitle you to shoot somebody just because he makes you uncomfortable.  That's unless the discomfort is the physical kind that results from a violent assault.

The best study of Stand Your Ground cases in Florida was done by the Tampa Bay Times, in reviewing the almost 200 cases that they have documented in Florida.   Their diffusive analysis looks at a variety of situations and "explanations" of the application of the law in cases, some inconsistent, some unexpected like drug deals gone wrong.  A variety of weapons, other than guns, were evident in about one third of the cases.

The paper did a series of articles on their research.  The most significant for purposes of the current discussion dominated by Al Sharpton (who brought us the Tawana Brawley scandal revisited by the NYTimes ) and many people active in the progressive movement against the Constitutional 2nd Amendment, is an article reviewing racial aspects of the data.

They made two key observations, the rest mainly speculations and simple discussion
Point 1 ) Whites who invoked the law were charged at the same rate as blacks.
Point 2 ) Whites who went to trial were convicted at the same rate as blacks.
A Tampa Bay Times analysis of nearly 200 cases — the first to examine the role of race in "stand your ground" — found that people who killed a black person walked free 73 percent of the time, while those who killed a white person went free 59 percent of the time.
Overall, black defendants went free 66 percent of the time in fatal cases compared to 61 percent for white defendants — a difference explained, in part, by the fact blacks were more likely to kill another black.
"Let's be clear,'' said Alfreda Coward, a black Fort Lauderdale lawyer whose clients are mostly black men. "This law was not designed for the protection of young black males, but it's benefiting them in certain cases.''
The Times analysis does not prove that race caused the disparity between cases with black and white victims. Other factors may be at play.
The analysis, for example, found that black victims were more likely to be carrying a weapon when they were killed. They also were more likely than whites to be committing a crime, such as burglary, at the time.
The use of "per cent" typically implies the use of statistical treatment, which is not really present.  There is no discussion of "standard error" in the statements or descriptions.  The further discussion that shows the myriad reasons and situations found, demonstrate that any reasonable statistic for error would be so large as to dwarf the differences they report. Hence their basic 2 statements. That would run counter to the ability to make any but a personal emotional statement about what it means.  Many are more than eager to make their emotional accusations for a variety of reasons.  Chief among them is the desire for political gain.

From Wikipedia another study that diminishes the racial argument
Another analysis of stand-your-ground laws by economists at Georgia State, using monthly data from the U.S. Vital Statistics, found a significant increase in homicide and injury of whites, especially white males.[8] They also analyzed data from the Health Care Utilization Project, which revealed significantly increased rates of emergency room visits and hospital discharges related to gun injuries in states which enacted these laws.
The perplexing cases in application of the law is by no means limited to Florida.  Many states have cases where information is murky and defendants can do some strange things.  In Texas a black woman was clearly threatened by a black male with a knife.  After taking out her gun and shooting him, she then takes pictures.  None of which lessens her right to protect herself from deadly force.  The whole thing was recorded by a surveillance camera.  Perhaps she did not know that, and thought pictures might protect her.

Another case that closely parallels Zimmerman - Martin is that of a black man who killed a white teenager when the teenager charged him.  Mr Roderick Scott was acquitted.  The best summary of this case that I have seen is at Snopes.  However another site which calls everyone comparing the cases "racist", a common theme amongst those misrepresenting the Stand Your Ground laws, states:
Scott, we must remember, was on his own property, defending his own property originally, from three individuals – not one – who were actively engaged in undisputed criminal behavior.
There are two reasons why the racist site is wrong.  The most important is, the action of the other committing a crime often means little as a defense against manslaughter.  If Mr Scott had simply walked up and shot the criminal, he would have been convicted.  The other is that, as Snopes stated, Scott heard a disturbance on his property, told his girlfriend to call the police, but left his property to confront two people rummaging through his neighbors car.  The third was walking away.  And finally, calling people racist or accusing them of being complicit of murder because they analytically review reports and disagree with the Al Sharpton's of the world is more about defamation than fair discussion.

So here is the obligatory review of some of the facts about Stand Your Ground and the Zimmerman - Martin case, from Hot Air
Had he chose, Zimmerman could have demanded a “Stand Your Ground” hearing in the pre-trial phase. If the judge had ruled in his favor, the charges would have been thrown out. He waived his right to that hearing, which means the media obsession with SYG is a total non sequitur, sort of like their obsession with gun laws post-Newtown that would have done zip to stop Adam Lanza. Right? Not exactly. The concept of standing your ground, i.e. having no duty to retreat when force is being used against you, is also part of the general self-defense law that Zimmerman did successfully invoke in being acquitted.
Don’t take any of this too seriously, though. Like I said yesterday, the SYG outcry is less about the particulars of the Zimmerman case and more about giving liberals something to rally around for the midterms when the DOJ inevitably decides not to prosecute Zimmerman. This is politics. 
Since President Obama has inserted himself in this case, as he did in the "Beer Summit", what views has he held on Stand Your Ground in his political life.
President Obama may currently be calling on the states to review their respective “stand your ground” gun laws, but he wasn’t always so opposed to the right-to-carry rule.
In 2004, while a senator in Illinois, he co-sponsored legislation that allowed for the same rights.
The text summary read: “Provides that it is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another. Effective immediately.”
The Illinois General Assembly website indicates then-Sen. Obama signed on as a co-sponsor on March 25, 2004.
As is usually the case with any legislation, there are several aspects that lead to a politician to vote for legislation. From they examine some of the "nuances" in Obama's positions.
Before one examines the validity of that claim, perhaps it’s best to revisit what the president said last Friday about SYG.
“It may be useful for us to examine some state and local laws to see if they are designed in such a way that they may encourage the kinds of altercations, confrontations, and tragedies as we saw in the Florida case, rather than diffuse potential altercations,” Obama said.
Obama went on to acknowledge that SYG was not explicitly mentioned during the Zimmerman trial, which ended with the acquittal of the neighborhood watch volunteer who fatally shot 17-year-old Trayvon Martin, but said that the self-defense law should still be examined because the message it sends to society.
“If we’re sending a message as a society in our communities that someone who is armed has a right to use those firearms even if there’s a way for them to exit from the situation, is that really going to be contributing to the kind of peace and security and order that we’d like to see?”
He then posed the question of whether Martin would have been justified in shooting Zimmerman if he had felt threatened when Zimmerman followed him in a car, concluding that  “if the answer to that question is at least ambiguous, then it seems to me that we might want to examine those kinds of laws.”
So, it’s pretty clear that Obama has a problem with the SYG law, which would make him a hypocrite if he did vote to expand Illinois’s “Stand Your Ground” law — so, did he?
The short answer is: yes.  But there’s way more to the story, so it’s not a clear-cut case of hypocrisy and/or flip-flopping.
. . .
S.B. 2386 went on to clear both Democratically controlled chambers, the state House and Senate, by a near unanimous votes.  As the National Review noted, at that time Stand Your Ground laws weren’t a partisan issue.  They were merely viewed as common sense self-defense laws by both Democrats and Republicans.

National Review reviews that there was much less partisan issue when Florida passed the SYG law, nor since, until the opportune moment.
There was little outcry about the change from minority communities. Perhaps that’s because, as The Daily Caller discovered, “African Americans benefit from Florida’s ‘Stand Your Ground” self-defense law at a rate far out of proportion to their presence in the state’s population, despite an assertion by Attorney General Eric Holder that repealing ’stand your ground’ would help African Americans.”
A third of Florida’s Stand Your Ground claims in homicide cases are made by African-Americans, a rate nearly double the black percentage of the state’s population. The majority of those claims have been successful, a success rate that exceeds that of Florida whites.
The "racist site" I discussed before, also claims that Zimmerman is being used as a poster child by racists and bigots.  They are projecting their own prejudices.  It would never have been brought to national prominence, had it not been that it fit the political meme they were looking for. They continually bring up Zimmerman to force their agenda and to force response within the context of Zimmerman.  The real issue should be a discussion about treatment of individuals in the judicial system. There are so many other cases that really should be receiving focus to achieve real "social justice", or the more preferable, simply justice.  But that's not the goal of Zimmerman baiters.

There are two cases here in Minnesota that really should be the focus.

First: Police brutality in Brooklyn Park.  An inadequate treatment is shown here.

Second: The case of Mrs Dorothy Dunning.  It is an egregious case of the use of "best interest of the child" in keeping a grandmother from adopting her grand children.

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