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Florida Supreme Court Opinion is Anti-Self-Defense

Judicial activism is alive and flourishing on the Florida Supreme Court.  The victims of this activism is the Second Amendment and citizens of the Sunshine State’s fundamental right of self-defense.

On Thursday, July 9, 2015, liberals on the Florida Supreme Court issued an opinion in a self-defense case that clearly has a chilling effect on the constitutional right of self-defense and the immunity from prosecution for exercising self-defense provided by the Legislature in the “Castle Doctrine/Stand Your Ground” law.  The presumption of innocence until proven guilty has been turned on its head.

Rather than follow the intent of the Legislature, the Court chose to rewrite the law to achieve its own policy goals.

In the Opinion Justice Pariente, who was joined by Justices Labarga, Quince, Perry and Lewis, defiantly said:

“We conclude that placing the burden of proof on the defendant to establish entitlement to Stand Your Ground immunity by a preponderance of the evidence at the pretrial evidentiary hearing, rather than on the State to prove beyond a reasonable doubt that the defendant’s use of force was not justified, is consistent with this Court’s precedent and gives effect to the legislative intent.”

In a dissenting opinion in which Justice Ricky Poltson concurred, Justice Charles Canady correctly wrote:

“By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

The entire majority opinion and the dissenting opinion is here:

“By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

The entire majority opinion and the dissenting opinion is here:

http://www.floridasupremecourt.org/decisions/2015/sc13-2312.pdf

Below is a link to an example of how others see this opinion:

Here’s What the Legislature Should Do After Bretherick by Greg Newburn, FAMM State Policy Director posted to FAMM.org on July 10, 2015

Florida HB-89 — “Threat of Force to Stop Attackers” Bill Passes

House Bill 89, Threatened Use of Force, introduced by Representatives Neil Combee (R-Auburndale) and Katie Edwards (D-Sunrise) was favorably amended and passed the Florida House Criminal Justice Committee by a bipartisan vote of 12-1. The bill currently has 29 cosponsors and with the number growing.

According to NRA-ILA, “HB-89 is a bill to stop abusive prosecutors from using 10-20-LIFE to prosecute people who ‘threaten to use deadly force’ against an attacker as a means of self-defense and to stop an attack. Some anti-gun, anti-self-defense prosecutors have been abusing the 10-20-LIFE law to prosecute average citizens who displayed a weapon or gun in self-defense to make an attacker back off.”

“Average citizens who never would have been in the system if they had not been attacked and in fear for their own safety, are being prosecuted for defending themselves. Because citizens took responsibility for their own safety, some prosecutors treat them like criminals and make them victims of a judicial system that is no longer about justice but rather about the whim or politics of prosecutors. 10-20-LIFE was passed to be used against criminals who use guns in the commission or attempted commission of crimes — NOT average citizens who rightfully defend themselves against threats of force,” notes NRA-ILA.

Voting In Favor of HB-89 were Florida Representatives Matt Gaetz, Ray Pilon, Irving Slosberg, Randolph Bracy, Mike Clelland, Dane Eagle, James Grant, Gayle Harrell, Dave Hood, Travis Hudson, Dave Kerner and Charles Van Zant.

Kionne McGhee voted Against HB-89.

FOLLOWING IS THE TESTIMONY OF MARION P. HAMMER:

HB-89 by Rep. Neil Combee & Rep. Katie Edwards
House Criminal Justice Committee
Thursday, November 7, 2013 3:00pm – 8:00pm

Thank You Mr. Chairman and Committee Members. The NRA and Unified Sportsmen of Florida support the Proposed Committee Substitute.

The simple truth is the intent of the 10-20-Life law is being violated.

10-20-Life was intended to lock up criminals who use guns during the commission or attempted commission of a crime.

10-20-Life was designed to put criminals behind bars and keep them off our streets – and to stop plea bargaining and sentence reductions for gun wielding criminals.

It was designed to stop prosecutors and judges from slapping gun-toting criminals on the wrist so they could quickly clear cases.

Folks, I was here in 1999 when we passed 10-20-Life – and NRA was a part of helping pass the law. I know what was intended and why.

10-20-Life was never intended to be used against citizens who, in an act of self-defense, threatened the use of force to stop an attacker.

It was never intended to be used on citizens who, in fear for their own safety, threaten to use force to stop an attack.

Yet that’s how some prosecutors are using it. Depending on the seriousness of the threat, they’ll try to put you in prison for 10 years or 20 years for threatening to use deadly force to protect your own life or the lives of your loved ones.

So the message from those prosecutors seems to be, if you actually use force in self defense — the law protects you But threaten to use force in self-defense, and they’re going to put you in prison for 10-20 years.

That is the cold hard reality of how some prosecutors are treating law-abiding people who never would have been in the system if they had not been attacked and in fear for their own safety.

There are people sitting in prison today who should not be there – but they are because prosecutors abused their discretion and violated the intent of 10-20-Life. This bill will stop that. Please support it.

Thank you.

Florida’s Stand Your Ground Law Stood Its Ground against attack – for now

By an overwhelming bipartisan vote of 11-2, the Florida House Criminal Justice Committee defeated House Bill 4003 by Representative Alan Williams (D). HB-4003 would have repealed Florida’s Castle Doctrine/Stand Your Ground law.

According to NRA-ILA, “House Speaker Will Weatherford kept his word.  He gave Representative Williams and his Dream Defenders the hearing they requested. Committee Chairman Matt Gaetz kept his word.  He skillfully and expertly ran a fair, open and orderly 5-hour hearing. In a structured format, each side was allowed 30 minutes for Legislators who were not on the Committee to speak on the bill. Speaking in opposition to repeal were Representative Jason Brodeur (R), Representative Marti Coley (R) and Representative Katie Edwards (D). Representative Alan Williams was the only Legislator who spoke in the 30 minute time slot allocated for legislators to speak in favor of repeal.”

Karl Etters in The Tallahassee Democrat writes, “Florida was the first state to adopt the extension of the Castle Doctrine in 2005, which includes a clause stating that a person who feels threatened has no duty to retreat, but instead can lawfully use deadly force anywhere they are lawfully allowed to be. But with more than 10 bills filed in the Florida Legislature addressing some form of self-defense, lawmakers say even without a full repeal of Stand Your Ground, there is room to make tweaks.”

Etters notes, “At a Wednesday press conference, he [Rep. Perry Thurston, D-Fort Lauderdale] said instead of focusing on a full repeal, effort should be diverted toward bills like SB 130, which denies aggressors the chance to use self-defense. Gaetz said ‘what the Senate has proposed is an exercise in style over substance. I think you’ve got a couple of senators who just want to see something pass even though it doesn’t fundamentally alter the rights of Floridians in a favorable way.’ National Rifle Association and the Unified Sportsmen of Florida President Marion Hammer said this bill ‘wipes out part of the statutes. It doesn’t tweak it; it doesn’t amend it. It doesn’t adjust it. It is a repeal’.”

Allison Neilson from Sunshine State News reports, “On their Twitter page, the Dream Defenders brought in the issue of race at the hearing, saying that every single supporter of the Stand Your Ground bill at the hearing was white. ‘Every. Single. Opponent. testifying in support of #StandYourGround has been white. Everyone.’ read the tweet. But several lawmakers dismissed the claim that the law was about race, including Rep. Dane Eagle, R-Cape Coral, and Matt Gaetz, R-Fort Walton Beach. Eagle dismissed the claims, saying instead the law was an issue of human rights.”

Speaking for 2 minutes each were 59 speakers from around the state (24 in support of repeal and 35 opposed to repeal). Following speakers on both sides of the issue the vote was as follows:

Voting Against the Bill To Repeal Stand Your Ground:

Representatives Matt Gaetz, Ray Pilon, Irving Slosberg, Mike Clelland, Dane Eagle, James Grant, Gayle Harrell, Dave Hood, Travis Hutson, Dave Kerner and Charles VanZant.

Voting in Favor of the Bill to Repeal  Stand Your Ground

Randolph Bracy and Kionne McGhee.

Currently twenty-two states have some form of an expanded self-defense law that extends to public places, while others only cover a person’s vehicle or business.

Senator Dick Durbin attacks Florida’s stand your ground law

On October 29th, the Senate Judiciary Committee held a hearing chaired by Senator Dick Durbin (D-IL), assistant Majority Leader, titled, “‘Stand Your Ground Laws’: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force.”

According to the NRA-ILA, “Present were several witnesses who attacked not only SYG laws, but also the Right-to-Carry, and even the American jury system.”

Ronald S. Sullivan, Clinical Professor of Law Harvard University.

NRA-ILA reports:

During his testimony, Harvard Law Professor Ronald Sullivan incorporated the themes of the previous witnesses and also shared his opinion of the highly publicized case involving George Zimmerman and Trayvon Martin. Coming to a different conclusion than that of the jury who acquitted Zimmerman, Sullivan theorized that Zimmerman was motivated by racism and that he shot Martin as Martin was attempting to defend himself from attack. In a radical statement, Sullivan noted that as a result of the Zimmerman case, residents of Florida are led to believe “they can incorrectly profile young black children, kill them, and be protected by stand your ground laws.”

One of the witnesses who defended the right to self-defense was Senior Fellow in Constitutional Studies at the Cato institute Illya Shapiro.  Shapiro’s testimony made clear that that the concept of no duty to retreat has been part of the American legal tradition dating back 150 years and that it is the law in 31 states. Shapiro went on to note that the Supreme Court enshrined the concept in federal law with the 1895 case of Beard v. United States, and that as an Illinois state senator, Barack Obama sponsored an expansion of the state’s self-defense laws.

Christopher Amore, a graduate of Brooklyn Law School and an associate at the law firm of Mound Cotton Wollan & Greengrass in New York, in the National Security Law Journal, published by George Mason University writes:

The concept of self-defense has long been a part of most legal systems. For example, the Bible endorses the principle of self-defense in its recognition of the right of the homeowner to kill the unlawful intruder. The Talmud acknowledges a right to use force against aggressors who threaten human interests, or threatened to kill. Saint Thomas Aquinas, a thirteenth century Italian Catholic priest and philosopher, reasoned that the purpose of using deadly force in self defense was not to kill, but rather to repel the attacker.

“[The] force had to be directed against the attack, not the attacker. The death was a side effect of the legitimate purpose rather than the goal itself.”

In 1688, English lawmakers, affirming the natural right for people to defend themselves, codified the right to bear arms in the Declaration of Right: “the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.” The Convention Parliament, the legislative body responsible for the drafting of the Declaration of Right, believed that the right to bear arms for the purpose of self-defense was one of the “true auntient and indubitable Rights and Liberties of the People.”

England’s recognition of the inherent right to self-defense in the seventeenth century would be echoed over three hundred years later by the United States Supreme Court. Interpreting this provision of the Declaration of Right in the landmark Second Amendment case District of Columbia v. Heller, the Court explained that “the right of having and using arms for self-preservation and defence” was necessary in order to protect “the natural right of resistance and self-preservation.”

Sanford Police Chief Cecil Smith. (Photo credit: News 13)

Guns.com reports, “Sanford Police Chief Cecil Smith announced this week that the city’s neighborhood watch program has been revamped and has now banned neighborhood watch members from carrying guns, local media reports…Opinions on the shooting – and the trial – remain a highly debated and heated topic, just as the program’s decision to ban firearms likely will be. The new rules and regulations of the neighborhood watch program, which will be announced at a community meeting next Tuesday, include prohibiting volunteers from pursuing any individual who they deem suspicious.”

Smith appears to be implementing procedures that not in accordance with Florida’s concealed carry and stand your ground statutes. The decision to carry and use deadly force is made by the individual.

Senator Christopher Smith, Democrat Minority Leader Florida Senate.

The Florida legislature will take up stand your ground during the 2014 legislative session. According to Robert M. Levy:

With the outcome of the George Zimmerman trial — in which he was acquitted in the shooting of a black teenager — some lawmakers are calling for a serious revision of Florida’s 2005 “stand your ground” self-defense law.

Following Trayvon Martin’s killing, Scott convened a task force to look at the law, but the panel did not recommend any major changes and none were achieved this year. But Senate Democratic leader Chris Smith of Fort Lauderdale has re-filed legislation [SB 0122] that would prevent individuals from “unreasonably escalating” a violent conflict and then claiming self-defense. The bill would also prevent a self-defense shield for individuals who chased someone down or left a safe place.

The bill also requires local law enforcement agencies to develop guidelines on neighborhood watch programs.

The House has agreed to hold hearings on the self-defense law, although the chairman of the panel has said he doesn’t support any changes to it.

Is disarming Floridians and weakening Florida’s stand your ground laws the best way to ensure “the natural right of resistance and self-preservation”? We expose, you decide.

Backlash for 3 Sarasota commissioners on Stand Your Ground Vote

Frances Rice, a Sarasota resident, is outraged at three Sarasota City Commissioners who voted to pass a resolution which calls for the repeal of Florida’s “Stand Your Ground” self-defense law.

“This will result in the denial of our Second Amendment right under the U.S. Constitution,” states retired Army Lt. Colonel Frances Rice, who is pursuing avenues for initiating a petition to recall Sarasota City Vice Mayor Willie Shaw, Commissioner At-Large Suzanne Atwell and Commissioner At-Large Susan Chapman (see photos and contact information at the end of this column).

“I was inspired by the successful recall of Colorado Senate President John Morse and state Sen. Angela Giron,” Colonel Rice said.  “They were ousted from office after they abridged the Second Amendment right of the citizens of Colorado with a draconian and unconstitutional gun-control law.”  She went on to say that “it is unconscionable that Vice Mayor Shaw and Commissioners Atwell and Chapman are now using their elected office as a vehicle for abridging the Second Amendment rights of the citizens of Sarasota.”

Colonel Rice further stated that Vice Mayor Shaw and Commissioners Atwell and Chapman have “misrepresented Florida’s Stand Your Ground self-defense law as a gun law when it is not.  This law contains absolutely no references to guns or shooting.”  According to Rice the self-defense, self-protection law has four key components:

1.    It establishes that law-abiding residents and visitors may legally presume there is a threat of bodily harm or death from anyone who breaks into a residence or occupied vehicle.  Law-abiding citizens and visitors may, in these circumstances, use defensive force, including deadly force, against the intruder.

2.    In any other place where the law-abiding resident or visitor “has a right to be,” that person has “no duty to retreat” if attacked.   The law-abiding resident or visitor may “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.”

3.    In either case, a law-abiding resident or visitor using the force permitted by the law is immune from criminal prosecution or civil action.  The law-abiding resident or visitor cannot be arrested, unless a law enforcement agency determines there is probable cause that the force used was unlawful.

4.    If a civil action is brought and the court finds the law-abiding resident or visitor (the defendant) to be immune based on the parameters of the law, the law-abiding resident or visitor (the defendant) will be awarded all costs of defense.

Rice points to two articles which address how African Americans are affected by Florida’s Stand Your Ground self-defense law:  “How Black Leaders Exploit Their People for Political and Financial Gain” by Gary DeMar and “Five Myths of the ‘Racist’ Criminal Justice System” by Larry Elder.

“Neither Vice Mayor Shaw nor Commissioners Atwell and Chapman called for a repeal of Florida’s self-defense law when a white man in Tampa, David James, was killed by a black man, Trevor Dooley, and Trevor Dooley invoked the self-defense law in his defense.  An article is posted on the Internet which provides additional analysis is entitled “George Zimmerman & Trevor Dooley: Stand Your Ground Hypocrisy?” by Lee Stranahan,” notes Rice.

Rice states, “Not one word was said by Vice Mayor Shaw or Commissioners Atwell and Chapman when, in Jacksonville, the NAACP advocated the use of Florida’s self-defense law in support of a black woman, Marissa Danielle Alexander, who claimed self-defense against an abusive husband.  The details about this case can be found in an article entitled ‘NAACP weighs in on what they say is a ‘Stand Your Ground’ case against Jacksonville woman‘ by Charles Broward.”

Rice notes, “Yet, Vice Mayor Shaw and Commissioners Atwell and Chapman have now roused themselves and passed a resolution to repeal Florida’s Stand Your Ground self-defense law when their action will have no effect other than to deny the citizens of Sarasota their Second Amendment rights.”

Mayor Shannon Snyder and Commissioner District 2 Paul Caragiulo voted against the resolution. Mayor Snyder spoke in full support of Florida’s “Stand Your Ground” self-defense law and the duty of elected officials to protect the Second Amendment right of the citizens of Sarasota.

Colonel Rice opined that “Vice Mayor Shaw and Commissioners Atwell and Chapman should be held accountable for their blatant abuse of power and malfeasance by being recalled from office.”

Two City Commissioners are already backtracking on their vote to repeal Stand Your Ground. Susan Chapman said,”We didn’t vote to repeal Stand Your Ground. We voted to revisit it.” Suzanne Atwell said her support for the vice-mayor’s plan should be seen as agreeing to have “a conversation about a highly charged issue.” The repeal was listed in the City Commission’s document titled Revised Final 2014 Legislative Priorities. The revised priorities state, “The City Commission requests that the State Legislature repeal the Stand Your Ground statute and establish a more civil approach to governance than afforded under the current statute.” [Emphasis added]

To view the results of this survey as a pie chart click here.

UPDATE: According to the National Rifle Association Institute for Legislative Action (NRA-ILA), “Yesterday, the Sarasota City Commission met with the Sarasota County Legislative Delegation to present the city’s list of legislative priorities.  One of those priorities requested the legislative delegation to work to repeal Florida’s ‘Stand your Ground’ statute. Fortunately, the four legislators attending this meeting disagreed with the city commission and oppose repealing the ‘Stand your Ground’ statute.”

EDITORS NOTE: The City of Sarasota is governed by a “Commission – Manager” form of government. There are five City Commissioners, two are elected at-large and three are elected from single-member districts. All elections are nonpartisan.

Mayor Shannon Snyder

Mayor Shannon Snyder
District Three
1565 1st Street, Room 101
Sarasota, FL 34236
Phone: (941) 954-4115
Email: Shannon.Snyder@sarasotagov.com

Commissioner Willie Shaw

Vice-Mayor Willie Shaw
District One
1565 1st Street, Room 101
Sarasota, FL 34236
Phone: (941) 954-4115
Email: Willie.Shaw@sarasotagov.com

Commissioner Suzanne Atwell

Commissioner Suzanne Atwell
At-Large
1565 1st Street, Room 101
Sarasota, FL 34236
Phone: (941) 954-4115
Email: Suzanne.Atwell@sarasotagov.com

Commissioner Paul Caragiulo

Commissioner Paul Caragiulo
District Two
1565 1st Street, Room 101
Sarasota, FL 34236
Phone: (941) 954-4115
Email: Paul.Caragiulo@sarasotagov.com

Commissioner Susan Chapman

Commissioner Susan Chapman
At-Large
1565 1st Street, Room 101
Sarasota, FL 34236
Phone: (941) 954-4115
Email: Susan.Chapman@sarasotagov.com

Online Survey: City of Sarasota, FL wants to repeal Stand Your Ground – do you agree?

The City of Sarasota, FL has experienced a 34% decrease in the City’s taxable property since 2008, which has affected the City’s operating revenues and levels of services. The Unfunded Actuarial Accrued Liability (UAAL) for the City’s three defined benefit plans and Other Post Employment Benefit (OPEB) plan was $296 million as of September 30, 2012. The City has a investment in capital assets net of related debt of $161,031,693 in 2012, up $4.91 million from 2011. The City has unrestricted net assets of $64,273,514. (NOTE: Although the City’s investment in its capital assets is reported net of related debt, it should still be noted that the resources needed to repay this debt must be provided from other sources, since the capital assets themselves cannot be used to liquidate these liabilities.)

At the end of the current fiscal year, the City had a total bonded debt outstanding of $142,008,656. Of this amount, $42,909,043 comprises debt backed by the full faith and credit of the City. The City’s interest on long-term debt in 2012 was $4,519,066. The City of Sarasota is on a path to become a mini-Detroit.

So what is top of mind with the City Commissioners? Repeal of Florida’s Stand Your Ground (SYG) statute.

Please take the Online Survey at the end of the column.

According to Allison Neilson from Sunshine State News, “When outlining the major legislative priorities for its 2014 agenda, the Sarasota City Commission voted to support a repeal of Florida’s Stand Your Ground laws. The repeal was listed in the City Commission’s document titled Revised Final 2014 Legislative Priorities.”

The City Commission vote was taken on September 7th, just days before the September 10th recall vote in Colorado where two Democrat legislators were ousted for their support of gun control.

The ball is now in the court of the Sarasota Legislative Delegation headed by FL Senator Nancy Detert (R). Delegation members include: FL Representatives Jim Boyd (R), Ray Pilon (R), Darryl Rouson (D), Greg Steube (R) and Doug Holder (R).

The National Rifle Association Institute for Legal Action (NRA-ILA) has already weighed in on this City initiative. The NRA-ILA sent out an email to members asking them to contact the Sarasota Legislative Delegation members and ask them to oppose the City’s priority to repeal SYG. The NRA-ILA states, “The ‘Stand your Ground’ statute gives back rights that have been eroded or taken away by a judicial system that, at times, appears to give preferential treatment to criminals.”

“The City Commission can’t expect a victim to wait before taking action to protect himself and his family and say, ‘excuse me, Mr. Criminal, are you here breaking into my home to rape and kill me or are you just here to beat me up and steal my TV set? And by the way what kind of weapon do you have?'”, asks the NRA-ILA.

WDW has asked Sarasota Legislative Delegation members for a statement on the City’s priority to repeal SYG. No replies have been received as of the publication of this column.

The NRA-ILA notes, “A law-abiding citizen should not have to worry about being arrested or prosecuted if you use force to defend yourself or your family. You should be able to presume that anyone who unlawfully intrudes is there to harm you.”

To view the results of this survey as a pie chart click here.

RELATED:

Total Recall: Colorado Lawmakers Ousted in Historic Vote

Florida Second Amendment Protection Act Goes LIVE!

Infographic: As gun sales rise gun crimes plummet

Florida has over one million citizens with concealed carry permits. This does not include the millions more who own a firearm in the state. Florida has come under scrutiny for its Stand Your Ground laws, which protect citizens who are protecting themselves. Gun rights are embedded in America’s history, a part of the Constitution and a right of law abiding citizens.

This infographic is from the National Shooting Sports Foundation says it all.

Gun Crimes Plummet Even As Gun Sales Rise

Explore more infographics like this one on the web’s largest information design community – Visually.

About the National Shooting Sports Foundation

The National Shooting Sports Foundation is the trade association for the firearms industry. Its mission is to promote, protect and preserve hunting and the shooting sports. Formed in 1961, NSSF has a membership of more than 8,000 manufacturers, distributors, firearms retailers, shooting ranges, sportsmen’s organizations and publishers.

Florida Task Force: All persons have a fundamental right to stand their ground

Tallahassee, FL – Today the Task Force on Citizen Safety and Protection, delivered their final report to the Office of the Florida Senate President, Office of the Speaker of the Florida House of Representatives and the Executive Office of the Governor.

The Task Force concluded that Florida Statute 776 is a good law and should not be overturned. On page five of their final report the Task Force’s top recommendations states:

The Task Force concurs with the core belief that all persons, regardless of citizenship status, have a right to feel safe and secure in our state. To that end, all persons who are conducting themselves in a lawful manner have a fundamental right to stand their ground and defend themselves from attack with proportionate force in every place they have a lawful right to be.

Governor Rick Scott said, “I want to commend the 19 members of the Citizen Safety Task Force and Lt. Governor Jennifer Carroll for their thorough and thoughtful consideration of Florida Statute 776. This diverse Task Force listened to the people of Florida and provided a platform for different viewpoints to be shared on the important issue of citizen safety. I met with Trayvon Martin’s parents and our hearts go out to the entire family for their loss, especially as we approach the anniversary of his death. We look forward to reviewing this final report as we approach the beginning of the legislative session.”

The final Citizen Safety Task Force report, video links to all of the task force meetings, correspondence and public input considered is located on the Task Force website.

Link to Task Force website and final report: http://www.flgov.com/citizensafety/.

The Task Force on Citizen Safety and Protection, led by Lt. Governor Jennifer Carroll, held public meetings in seven cities across Florida and listened to subject matter experts and citizens. They concluded that Floridians have the right to defend themselves and the right to stand their ground when attacked. They concur that Floridians have the right to arm and protect themselves and their families from violence.

George Zimmerman and the Inalienable Right to Self-Defense

George Zimmerman was released from custody on Friday after posting a $1 million bond. Mr. Zimmerman faces second-degree murder charges. He has invoked Florida Statue 776.012, known as the “Stand Your Ground” law, as the basis of his justification to shoot Trayvon Martin.

A stand-your-ground law states that a person may use force in self-defense when there is reasonable belief of a threat, without an obligation to retreat first. In some cases, a person may use deadly force in public areas without a duty to retreat. Under these legal concepts, a person is justified in using deadly force in certain situations and the “stand your ground” law would be a defense or immunity to criminal charges and civil suit. Florida statute 776.012 states:

Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

The right to self-defense has been addressed by the U.S. Supreme Court. In Beard v. U.S. (158 U.S. 550 (1895)) the SCOTUS found that a man who was “on his premises” when he came under attack and “…did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm…was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground.”

Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States (256 U.S. 335, 343 (16 May 1921)), a case that upheld the “no duty to retreat” maxim, that “detached reflection cannot be demanded in the presence of an uplifted knife”.

The question is: Did Mr. Zimmerman use the necessary force to “prevent imminent death or great bodily harm to himself”?

The fact that Trayvon Martin was unarmed does not prevent the use of deadly force. The determination of “imminent death or great bodily harm” is determined by the person being attacked, not the attacker.

In a Fox News interview noted trial attorney Alan Dershotitz stated, “This affidavit submitted by the prosecutor in the Florida case is a crime. It’s a crime.”

“If she [Angela Cory, the Florida state attorney and special prosecutor who Gov. Rick Scott appointed to handle the case] in fact knew about ABC News’ pictures of the bloody head of Zimmerman and failed to include that in the affidavit, this affidavit is not the truth, the whole truth and nothing but the truth,” Dershowitz said. “It’s a perjurious affidavit.”

Even worse, Dershowitz warned that by overcharging Zimmerman, Cory may have planted the seed for riots if he is acquitted, as Dershowitz predicted will happen.

“If there are riots, it will be the prosecutor’s fault because she overcharged, raised expectations,” Dershowitz said. “This prosecutor not only may have suborned perjury, she may be responsible, if there are going to be riots here, for raising expectations to unreasonable levels.”

He said it is quite possible Zimmerman was guilty of a lesser charge, but the affidavit does not support a second-degree murder charge.

Florida Statute 776.012 allows defendants to make their self-defense case at a hearing presided over by a judge and without the use of a jury. If the judge deems self-defense was justified, the case can be dismissed without going to trial.

Florida Stand Your Ground Law:

2011 Florida Statutes CHAPTER 776 JUSTIFIABLE USE OF FORCE

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The 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.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) 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.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

776.041 Use of force by aggressor. —The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.