About that Florida stand-yer-ground law ...

[iverglas]

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Damn, I love it when I am 100%, on all counts, RIGHT.

At least, in the opinion of people who count.

http://www.law.harvard.edu/students/orgs/jol/vol43_1/michael.pdf

This is a 14-page scholarly article, so the excerpts that follow are fair use/fair dealing. All boldface emphases are mine.

Harvard Journal on Legislation

FLORIDA’S PROTECTION OF PERSONS BILL

Sixty-four years ago, Professor Prosser summarized the common law rule of self-defense applicable to both civil and criminal claims:

Since the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify self-defense.

Earlier this year, the Florida House and Senate departed from this universally accepted principle. Florida’s Protection of Persons Bill allows a person outside of his home to stand his ground in the face of an attack and inside of his home or vehicle against an intruder, even if there is no threat of harm.

... Governor Jeb Bush promptly signed the bill, which became effective on October 1, 2005.(8) ...

(8) Governor Bush said he supported the measure because, “to have to retreat and put yourself in a very precarious position defies common sense.” See Abby Goodnough, Florida Expands Right to Use Deadly Force in Self-Defense, N.Y. Times, Apr. 27, 2005, at A1. Contrary to the Governor’s depiction of existing state law, Florida does not impose a duty to retreat if fleeing would jeopardize a person’s safety. See Danford v. State, 43 So. 593, 595 (Fla. 1907) (“It is the duty of a party to avoid a difficulty which he has reason to believe is imminent, if he may do so without apparently exposing himself to death or great bodily harm.”) (emphasis added).

Anybody need directions to any of the multiple times I have said just that right here?

... Although jurisdictions that adhere to the common law duty to retreat recognize the costs of requiring a person assailed to “seek dishonor in flight,”(11) the supreme value of life serves as the justification for this duty.(12)

(11) Joseph H. Beale, Jr., Retreat from Murderous Assault, 16 Harv. L. Rev. 567, 577 (1903). For a discussion of the common law duty to retreat, see Regina v. Smith (1837), 173 Eng. Rep. 441 (K.B.); Regina v. Bull (1839), 173 Eng. Rep. 723 (K.B.).

(12) See, e.g., State v. Shaw, 441 A.2d 561, 565 (Conn. 1981) (declaring that the duty to retreat is premised on the “recognition of ... the great value of human life”); People v. Canales, 624 N.W.2d 918, 919 (Mich. 2001) (Corrigan, C.J., dissenting) (asserting that the sanctity of human life is the primary principle underlying the duty to retreat rule: “human life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion”) (quoting Pond v. People, 8 Mich. 150, 173 (1860)).

Anybody need directions to any of the multiple times I have said just that right here?

However, since the late nineteenth century, the duty to retreat has eroded as most jurisdictions have begun to view it as an unreasonable burden on societal notions of courage and dignity.(13)

(13) This trend emerged in the unsettled territories of the late nineteenth century, and decisions that removed the duty to retreat bear the imprint of the code of the West. The Ohio Supreme Court is credited with creating what has become known as the “true man” rule in Erwin v. State, 29 Ohio St. 186 (1876): "Does the law hold a man who is violently and feloniously assaulted responsible for having brought such necessity upon himself, on the sole ground that he failed to fly from his assailant when he might have safely done so? (A) true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm."

Anybody not see the difference between reasonable apprehension of imminent death or serious injury and wanting to be a "true man"?

So there we have me vindicated on the whole self-defence thingy: what it is, what it requires (and doesn't require), and why it requires it.

Moving along now to the other thing the Florida law does, as I have said over and over and over and as no one has once acknowledged the truth of ... let alone given a hint that s/he understands.

(Note that I, of course, do not accept what a legislative committee says about the meaning of legislation just because the committee happens to say it; the interpretation of legislation is STILL the job of the courts, not the legislature. But the legislative committee has stated what its INTENT was, and it was indeed exactly WHAT I SAID it was, over and over and over ...)

This attempt to codify the castle doctrine is significant because it not only extends the conception of one’s castle to include vehicles but also eliminates the requirement of necessity. The bill accomplishes the latter change through Florida Statute § 776.013, which sets forth a presumption that removes the home or vehicle occupant’s burden of proving that he feared for his safety. Now, a person who uses deadly force against an intruder is presumed to have a reasonable fear of death or bodily injury.

According to the Senate Committee Report, this presumption is irrebuttable.(20) Therefore, a court will not entertain arguments showing the nonexistence of the presumed fact, even in the face of overwhelming evidence. Rather, a court will direct a jury that if they find the basic fact, that the victim was unlawfully in the actor’s dwelling or vehicle, to be proven, then they must find the presumed fact that the actor had a reasonable fear of imminent death or bodily injury. This finding in turn justifies the use of deadly force, regardless of the circumstances.

(20) Fla. S. Rep. No. 107-436, 6pt. III, at 6 (2005) (Judiciary Rep.) (“Legal presumptions are typically rebuttable. The presumptions created by the committee substitute, however, appear to be conclusive.”). Accord Fla. H.R. Rep. No. 107-249 (2005) pt. B, at 4 (Judiciary Rep.) (“A person is presumed, rather than having the burden to prove, to have a reasonable fear.”).

So, how's it gonna work (as I have repeatedly asked someone, anyone, here to explain)?

Try this out.

The decision of the Florida Court of Appeals in Quaggin v. State highlights the effect of this presumption. In Quaggin, the defendant lived in a structure surrounded by “piles of junk” and several abandoned trailers. Two children found several comic books and Pez dispensers in one of these trailers and began searching for the owner so they could ask permission to take what they had found. They found another structure they thought was abandoned and entered through an unlocked sliding glass door. The owner of the dwelling jumped up and asked what they were doing there. Before the children could answer, the owner fired at close range and killed one of the boys. The Florida Court of Appeals held that the defendant had to believe that a forcible felony was being committed in order to claim selfdefense. The court further held that the necessity of using deadly force in response must be reasonable, i.e., the appearance of danger must have been so real that a reasonably prudent person under the same circumstances would have believed that the danger could be avoided only through the use of deadly force.

The new bill eliminates these requirements. The defendant’s use of force is now justified because of a conclusive presumption that the children posed a threat that was sufficient to create a reasonable fear of death or imminent bodily harm. This could be true even if the children had not forcibly entered the dwelling, as was the case here. Florida Statute § 776.013(B), a new section created by the bill, extends the presumption to a “person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.” This drastically changes Florida law, which previously required a reasonable belief and factual grounds that the use of deadly force was necessary. In Quaggin, for example, a previous burglary in the defendant’s home or even a mistaken belief that he locked the sliding glass door would now give the defendant reason to believe that these intruders had unlawfully and forcibly entered his dwelling.

So how are we liking the apples so far?

While removing the duty to retreat brings Florida in line with the majority rule, the conclusive presumption sets Florida apart from all other states because it contravenes an ancient and universally adopted principle that restricts the use of deadly force to an actual or threatened harm to persons. It does so not by eliminating the requirement of reasonable apprehension but through a conclusive presumption that automatically establishes it, regardless of whether it actually existed. On this point, Professor Fleming James notes:

The conclusive presumption is not really a procedural device at all. Rather it is a process of concealing by fiction a change in the substantive law. When the law conclusively presumes the presence of B from A, this means that the substantive law no longer requires the existence of B in cases where A is present, although it hesitates as yet to say so forthrightly.

Damn!! That is EXACTLY what I said -- that "presumptions" are, in the normal world, procedural evidentiary rules that shift the burden of proof to start, and that can be REBUTTED by evidence to the contrary -- and that that is NOT what this thing is.

You'd almost think I'd gone to law school or something, wouldn't you?

Skipping to the concluding comments now (and I just can't resist some additional emphasis):

... The bill’s conclusive presumption states that reasonable apprehension sufficient to warrant deadly force per se exists if an intruder unlawfully and forcibly enters a dwelling or vehicle.105 In doing so, it transgresses the universally adopted common law rule that deadly force may not be used in defense of personal property. Over two centuries ago, Blackstone observed that “many learned and scrupulous men have questioned the propriety, if not lawfulness, of INFLICTING CAPITAL PUNISHMENT for simple theft.” Converting the lesser crime of trespassing into a capital offense raises the same concern.

The Harvard Journal on Legislation could've just asked moi, and saved this guy a lot of trouble:

Daniel Michael, B.A., New York University, 1998; J.D. Candidate, Harvard Law School, Class of 2007.

Anybody here got credentials s/he would like to stack up against them (and of course the credentials of the journal's reviewing committee), and research like this to back up any contrary opinion?

Anybody?