15 States Expand Right to Shoot in Self-Defense

[Omaha Steve]

Full story: http://www.nytimes.com/2006/08/07/us/07shoot.html?ex=1155614400&en=e959f78db4ff0262&ei=5043&partner=EXCITE



15 States Expand Right to Shoot in Self-Defense

By ADAM LIPTAK
Published: August 7, 2006

In the last year, 15 states have enacted laws that expand the right of self-defense, allowing crime victims to use deadly force in situations that might formerly have subjected them to prosecution for murder.

Supporters call them “stand your ground” laws. Opponents call them “shoot first” laws.


ason Rosenbloom was shot twice during a dispute over how many garbage bags Mr. Rosenbloom had put out. The shooter was not arrested.


Thanks to this sort of law, a prostitute in Port Richey, Fla., who killed her 72-year-old client with his own gun rather than flee was not charged last month. Similarly, the police in Clearwater, Fla., did not arrest a man who shot a neighbor in early June after a shouting match over putting out garbage, though the authorities say they are still reviewing the evidence.

The first of the new laws took effect in Florida in October, and cases under it are now reaching prosecutors and juries there. The other laws, mostly in Southern and Midwestern states, were enacted this year, according to the National Rifle Association, which has enthusiastically promoted them.

[Guaranteed]

1. Not a good idea to do this. nt

[Solo_in_MD]

2. Count on the NYT to take the negative side of a gun issue

Overall I support them. Way to many prosecutors, particualrly in urban areas refuse to recognize the right to self defense and that fleeing is not always an option.

There have been times in my life where I chose to stand my ground and defend myself and others. Though it was not done with firearms, I sitll could have been prosecuted under the older laws. The "stand your ground" basis is much more reasonable.

[CTLawGuy]

3. I think the point of those old laws

is to ensure that the force in self-defense is proportional. Shooting a trespasser because they are walking to your door - not proportional.

Under the new laws you don't have to fear for your life, I don't agree with that. Deadly force is only proportional agaisnt the threat of deadly force.

[Solo_in_MD]

4. Original intent is being ignored by prosecutors

so those kinds of legislation is necessary. Duty to retreat is bullsh*t.

[benEzra]

7. Incorrect, in most cases...

I think the point of those old laws
Posted by darboy


is to ensure that the force in self-defense is proportional. Shooting a trespasser because they are walking to your door - not proportional.

Under the new laws you don't have to fear for your life, I don't agree with that. Deadly force is only proportional agaisnt the threat of deadly force.

I think you are operating under some misconceptions here. The new laws would NOT allow you to shoot a tresspasser, unless said tresspasser is in the act of breaking into your occupied home--and lethal force was already justified in that case.

I am most familiar with the Florida law, and it does NOT alter the requirement that you must be in reasonable danger of death, serious bodily harm, or a forcible felony in order to use potentially lethal force in self-defense. The only thing the new law changes in that regard would be in extending the Castle Doctrine to your vehicle, so that if you are actually being carjacked, a legal presumption is created that you are indeed in danger. In other cases, you still have to be in imminent danger of death, serious bodily harm, or a forcible felony (same standard as before) in order to use potentially lethal force in self-defense.

The elimination of the "duty to retreat in the face of a lethal threat" provision in Florida law was a good idea, and brings Florida self-defense law into line with California's and Massachusetts', as I understand those states' statutes.

In most of the other states (Georgia, Kentucky come to mind), the new laws merely restated existing law more forcefully.

[formernaderite]

9. generally as it becomes known that someone "may" shoot you

upon entering...the number of uninvited people entering goes down. My brother used to live across the street from the District of Columbia...ie. on the DC line. He didn't own a gun, but wondered why during a spate of robberies, houses on the Maryland side didn't get hit. A DC neighbor across the street speculated that the robbers might have understood that Maryland residents had the ability to shoot them...ie. guns have been illegal in DC since the mid 70's.

[exlrrp]

5. Every liberal should own guns

Whether theyre used or not. The conservatives holding all the guns in this country is a scary situation.
There's a time to stand your ground and a time to run. The older I get the more I'm inclined to run but less able to.
I have a concealed weapons permit which I use on occasion. I'm glad I have it.
I shot quite a few people in the Vietnam War, it was their life against mine. If I think a situation is dangerous to me I'll do it again.

[KansDem]

10. I thought this statement was rather revealing...

...allowing crime victims to use deadly force in situations that might formerly have subjected them to prosecution for murder.

"Crime victims" has an "after the fact" ring to it, as if you determine yourself to be a victim of crime after the crime has been committed. Then to use deadly force would result in a charge of murder.

A better-written sentence would be something like, "...allowing a person when confronted with a life-threatening situation to use deadly force in situations that might formerly have subjected them to prosecution for murder."

But then, I'm not a professional journalist...

[slackmaster]

6. Piss-poor excuse for journalism - Shame on the NYT

From the cited article:

The Florida law, which served as a model for the others, gives people the right to use deadly force against intruders entering their homes. They no longer need to prove that they feared for their safety, only that the person they killed had intruded unlawfully and forcefully....

Too bad the NYT didn't seize the opportunity to do a little deaper research rather than simply regurgitating a summary written by someone who doesn't like the law. California's self-defense code is similar to what is in place in most states already, and it's been that way here for a very long time.

From the California Penal Code:

197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant
or substantial physical injury.

199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged.

The law in most states reads pretty much the same way. The 15 mentioned in the article have in most cases clarified what was already understood. The part I underlined has been copied almost verbatim into Florida's code and that of many others. As a Californian I object to having the NYT say that Florida's law was the blueprint. THE BLUEPRINT WAS STOLEN FROM US! :hippie:

...The law also extends this principle to vehicles.

This is the only significant difference between the controversial Florida law and what we have in Cali, however elsewhere the Penal Code explicitly states that the definition of one's residence is extended to places like hotel rooms and campsites. And motor homes, but not passenger cars.

In addition, the law does away with an earlier requirement that a person attacked in a public place must retreat if possible. Now, that same person, in the law’s words, “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force.”

Fluff. Only one or two states (MA and LA IIRC) ever had laws that explicitly mentioned a duty to retreat. In all others it has been assumed not to exist. The explicit language saying there is no duty to retreat is a political bone being tossed to the right.

[benEzra]

8. Case Study: Georgia

from another thread where this topic came up.

First, the text of the bill itself:

http://www.legis.state.ga.us/legis/2005_06/fulltext/sb396.htm

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.
Article 2 of Chapter 3 of Title 16 of the Official Code of Georgia Annotated, relating to justification and excuse as a defense to certain crimes, is amended by inserting immediately following Code Section 16-3-23 a new Code section to read as follows:
"16-3-23.1.
A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force."

SECTION 2.
Said article is further amended by striking in its entirety Code Section 16-3-24.2, relating to immunity from prosecution and exception, and inserting in lieu thereof the following:
"16-3-24.2.
A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of this title."

SECTION 3.
Article 1 of Chapter 11 of Title 51 of the Official Code of Georgia Annotated, relating to general provisions relative to defense to tort actions, is amended by striking in its entirety Code Section 51-11-9, relating to immunity from civil liability for threat or use of force in defense of a habitation, and inserting in lieu thereof the following:

"51-11-9.
A person who is justified in threatening or using force against another under the provisions of Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat from the use of such force and shall not be held liable to the person against whom the use of force was justified or to any person acting as an accomplice or assistant to such person in any civil action brought as a result of the threat or use of such force."

SECTION 4.
All laws and parts of laws in conflict with this Act are repealed.

Note that the new law does not touch the older statutes that set forth whether or not a shooting is to be ruled justified. Those rules are codified in Georgia Code Section 16-3-21, use of force in defense of self or others; Section 16-3-23, relating to the use of force in defense of a habitation; and Code Section 16-3-24, relating to the use of force in defense of property other than a habitation.

Since most of this thread pertains to the myth that the new law allows you to shoot someone you "feel threatened" by as you walk down the street, Section 16-3-21 is most apropos. This section is as follows:

http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=16-3-21

16-3-21.
(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other´s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

(b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:
(1) Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
(3) Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
(c) Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.
(d) In a prosecution for murder or manslaughter, if a defendant raises as a defense a justification provided by subsection (a) of this Code section, the defendant, in order to establish the defendant´s reasonable belief that the use of force or deadly force was immediately necessary, may be permitted to offer:
(1) Relevant evidence that the defendant had been the victim of acts of family violence or child abuse committed by the deceased, as such acts are described in Code Sections 19-13-1 and 19-15-1, respectively; and
(2) Relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to the family violence or child abuse that are the bases of the expert´s opinion.

There's the reasonable belief requirement. You are NOT allowed to shoot someone if you "feel threatened," and the Bradyites are full of crap when they claim that the new law makes that legal. SB396 says that the new rules apply IF the use of force is in accordance with the existing rules in 16-3-21, -23, and -24.

I should point out that before anyone gets confused, 16-3-21.b.(3) is NOT the duty to retreat requirement that the new law repeals; rather, that paragraph prohibits you from starting a fight with somebody and then claiming self-defense when the other person escalates the conflict.

FWIW, here are the other relevant portions of the Georgia Code, relating to defense of habitations (Castle Doctrine) and defense of property:

http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=16-3-23

16-3-23.
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other´s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.


http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=16-3-24

16-3-24.
(a) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other´s trespass on or other tortious or criminal interference with real property other than a habitation or personal property:
(1) Lawfully in his possession;
(2) Lawfully in the possession of a member of his immediate family; or
(3) Belonging to a person whose property he has a legal duty to protect.
(b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.

Note also that Georgia does NOT authorize potentially lethal force to stop trespass; it only allows it to stop the commission of a forcible felony, and the new law does not change that.


Regarding the Florida incidents the NYT story in the OP cites, either the prosecutors are still evaluating things, or the NYT omitted some details that made the shootings be ruled self-defense. And in the case of the prostitute shooting her would-be murderer, the presumption of reasonable fear in the new law does not apply since this was not a home invasion or carjacking, so the local prosecutor must have made a determination that the woman was indeed in reasonable fear of serious, imminent danger of death or serious bodily harm when she shot her attacker.