Thursday, April 28, 2005

Wild, Wild West?

New Update: Via a Public Defender, I discovered this excellent analysis of Florida's new self-defense law written by a Florida lawyer. It's pretty thorough. Interestingly, he notes at the end that Florida has a mandatory minimum sentence of 10 years in prison if you are convicted of an offense that involved the discharge of a firearm. So, if you go to trial in a case involving a gun thinking the new self-defense law will get you off, you risk a big chunk of time. In Texas, you can get probation for virtually every offense except capital murder if you have no prior felony convictions. And I have seen juries give probation to someone they just convicted of murder. The typical case where that happens is what we call "imperfect self defense." In essence, the jury concludes that the defendant did kill the person because he honestly believed he needed to use deadly force to protect himself or someone else, but the jury doesn't believe the defendant's belief was reasonable under the circumstances. I guess you don't get the chance at something like that in Florida.

Update: After reading the full statute, and considering Gideon's remarks here and in the comments to my post, I'm amending my opinion on this law. I'm in favor of the part that allows the use of deadly force without imposing a duty to retreat. But, the immunity provision is too confusing and burdensome. See, I can change my mind when presented with valid arguments. And people call me stubborn!
Original post:

I don't understand all the people who are up-in-arms about a recent proposed change to Florida's self-defense law. It seems to me that all it does is remove the duty to retreat before using deadly force. I've always thought the duty to retreat is stupid. If you reasonably believe that someone is about to inflict death or serious bodily injury on you, why should you have to try to run away first? If running away doesn't work, then you could have put yourself in even less of a position to defend yourself. I just don't get the outrage. This is already the law in Texas. There is no duty to retreat. Your belief just has to be reasonable. It's still hard to win on a self-defense theory here in a deadly force case, even though the burden is on the state to disprove it beyond a reasonable doubt. When someone ends up dead, juries scrutinize the behavior of the killer who claims self-defense very carefully. They often think about whether the defendant could have retreated when they consider whether the defendant's actions were reasonable. They don't let people kill each other willy nilly around here. I think the critics of this bill are a bit hysterical.


Anonymous Gideon said...

This brouhaha over this bill erupted a few weeks ago, when it first passed the legislature - there has been a lot of discussion about it since then (in the blogosphere). The problem that opponents (me included) have with it is not from a PD's standpoint - I think the duty to retreat - while silly - still has immeasurable value. It prevents escalating fights in the streets from becoming free for alls.

The other problem is that this bill creates a bar to prosecuting someone who claims self-defense, except if the victim is a police officer. There is plenty of room for abuse here.

More here, here and here.

4/26/2005 11:04 AM  
Blogger 123txpublicdefender123 said...

I don't understand the "immunity" language at all. The immunity still only applies if the defendant had the reasonable belief that the deadly force was necessary to prevent death or serious bodily harm, right? So, who decides immunity? The judge at a pre-trial motion to dismiss? The jury? The immunity includes immunity from detention and arrest, as well as prosecution. Does that mean that the judge asked to sign the arrest warrant has to decide the immunity issue before issuing a warrant? That whole section is very confusing.

In Texas, deadly force is a justification defense--the burden is on the state to disprove it beyond a reasonable doubt (once the defense raises it with a "scintilla" of evidence). I haven't seen lots of people getting acquitted of murder on self defense grounds, though. I still find juries generally want people to use deadly force as a last resort (except, perhaps, when the "bad guy" was breaking into the defendant's home). I also don't think the way a particular legislature defines self defense really affects people's behavior in the street. Most people don't know the specific law on self defense, and they certainly aren't thinking about it in the heat of a situation where they believe they're about to be killed.

4/26/2005 12:44 PM  
Anonymous Gideon said...

Your confusion is the whole problem. (Not your confusion, but the thing you're confused about). I've read and re-read the bill and I still cannot figure out how someone can claim self-defense or immunity. If there is a bar to prosecution, then the police must let someone walk away from the scene of a crime (if there are no other witnesses) and he/she claims self-defense. If there is immunity - will the police even waste time investigating? Can't two people meet in some dark alley to settle some beef and one shoots the other, then claims self-defense.

In essence, it is de-criminalizing murder. As a civilian and citizen, I have problems with that.

I will agree with you that juries have a hard time buying self-defense as a principle. Here too, self-defense has to be raised by a "scintilla" of evidence and then disproven by a reasonable doubt by the state.

I mean, really, we as PDs should be jumping with joy - but somehow it just strikes me as bizarre.

4/26/2005 12:56 PM  
Blogger 123txpublicdefender123 said...

The immunity section is the real problem. If two public defenders such as ourselves, skilled at getting their clients off, can't figure the darn thing out, then what use is it? I don't understand why they don't just erase the duty to retreat, leave it as a true defense with the burden on the state to disprove, and leave the immunity stuff out of it.

4/26/2005 2:49 PM  
Anonymous Gideon said...

I love that you call my arguments valid. Mostly, I spew nonsense.

But thank you!

4/27/2005 4:56 PM  
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