Thursday, May 31, 2012

PF 2012 Stand Your Ground - CON & PRO

For more about Public Forum Debate including topic analysis, strategies and links to evidence, *click here*.


More Musings on Stand Your Ground (SYG).  Here are some common positions I envision for both sides of the debate.  To read my topic analysis from the beginning, click here.

CON Positions
An interesting report has recently been filed by the Florida Stand Your Ground Task Force, chaired by Senator Chris Smith. The report presents a very good review of the reasoning behind the passage of the Stand Your Ground law in Florida stating:


"In the purported reasoning for passing the law, the legislature stated that the law was passed in order to give “law-abiding people” the right to protect their family and themselves from intruders and attackers without having to worry about criminal or civil penalties before taking action in defense of themselves and others."

It then adds the following:
"But some of the individuals who might be able to claim the protections of the law do not appear to be the types of “law-abiding” individuals the legislature sought to protect."
This very nicely summarizes one aspect of the debate, at least as it pertains to the Florida implementation of the law.

(see: http://senatorchrissmith.com/standyourground/finalreport.pdf)

Ambiguous Interpretation
If SYG eliminates the fear of prosecution (and in the case of Florida, fear of being detained by Police) then a threatened citizen need not mull over the decision to use deadly force to defend oneself from a perceived threat.  Indeed, in the Supreme Court case of Brown v United States in 1921, Justice Oliver Wendell Holmes, citing the prior Beard case (see part 1 of this analysis) opined:


"Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him."
(see: http://supreme.justia.com/cases/federal/us/256/335/case.html)

Clearly, it seems logical to assume the intention of these rulings and laws are to acknowledge the fact that a person in a life threatening situation should not be required to pause and reflect whether other courses of action are available.  The threatened person needs to be able act and act immediately.

As I see it, the problem is not in the intention.  If a person is in danger of imminent bodily harm including death he should have the right to act.  The problem is the ambiguity of the perception of imminence and threat.  One may feel threatened when an assailant is in her face, another when the assailant is five yards away.  One may feel threated when an intruder is in the house, another when the intruder is standing on the driveway.  Which of these constitutes a reasonable interpretation of imminence?  The same kind of analysis can be done for threat of death or bodily harm.  At what point does an encounter morph into a legitimate fear of death?  When the aggressor exposes a weapon or when the aggressor is yelling threatening words?  By justifying the use of deadly force in self-defense and impeding prosecutorial review, each individual is more or less free to interpret the law in their own way and then act believing the action is fully in compliance with that interpretation instead of a standard determined by a panel of jurors who's opinion would be in accord with the principle of law examining, "what would a reasonable person do".

Shield For Crime
In some cases it may be possible for SYG laws to be used as a cover for killing someone, either premeditated or in the "heat of the moment".  Whereas, prior to the law the burden upon the killer would have been much greater than under a more unrestricted stand your ground law.  If I shoot someone in my front yard or in the mall parking lot, all I need do is explain how I sensed imminent threat of bodily harm from the victim.  I could claim, the victim had threatened me in the past for example. If I can show I did not provoke attack and had a legal right to both carry the weapon used and be at the location at that time, there is little the police or the prosecutor can do to question my purpose.  It would seem, even if there was a known history of trouble between myself and the victim and even if it was publicly known I hated the victim, my claims of self-defense under SYG could potentially protect me from prosecution.

Escalation of Violence
Prior to the implementation of SYG laws, there was a common law expectation one had a duty to retreat, if possible, from a threat.  By answering aggression with equal or greater aggression, there is an escalation of hostility that can quickly turn deadly.  An interesting paradox arises when the potential victim answers with aggression.  Is it possible the escalation of violence creates a justification for the aggressor to feel threatened and so act to defend against the initial victim.  In effect, the victim becomes the aggressor and the aggressor becomes the victim.  These situations ordinarily create dilemmas for prosecutors even though, often it is deemed that once an aggressor attacks he forfeits his civil liberties and right to self-defense.  In any case, the escalation of violence creates additional problems that potentially complicate the ability of justice officials to sort out.  Anytime the victim responds aggressively and the initial aggressor answers with even more aggression, the potential for a violent, possibly deadly ending escalates accordingly, when simply running away at the outset could have averted the problems in the first place.


PRO Positions

CON Arguments Misrepresent SYG
The fact of the matter is, any time one claims self-defense, there is a standard of proof that must be upheld.  At minimum, the claimant must not have been the aggressor and it must be shown the response was necessary to avert an imminent threat of harm.  Throughout this analysis, that mantra has resounded over and over.  SYG laws do not remove that burden of proof.  They merely say, the potential victim need not consider fleeing before choosing to defend oneself and in fact this right to stand ground has been upheld by the U.S. Supreme Court.  The CON side of the debate wants to obfuscate the facts and leave that impression that somehow the laws bypass the burden of proofs for the requirement of self-defense. SYG does not do this.

Better to Error on the Side of Safety
The claim is made that SYG makes it easy for persons to get away with murder but that is a presumption not based on facts of law.  SYG does not remove the burden of proof and does not eliminate police investigation of each case.  SYG laws are designed to allow ordinary, law abiding citizens the right to defend themselves without fear of being drawn into a protracted and expensive trial and questioning of their duties when the conditions for the self-defense claim are clearly met.  In those circumstances where the facts are not so clear, where a crime may have been perpetrated by the claimant, it is better to error on the side of safety than force innocent to turn their backs to armed aggressors.

SYG Is a Legitimate Expansion of USSC Rulings
Even if one could cite flaws in the way a particular state legislature chose to implement an SYG statute, it does not mean we should issue a sweeping declaration that such laws are illegitimate.  The fact is, the laws are enacted as a response to the need to give law-abiding citizens the freedom to answer threats, as the U.S. Supreme Court has stated "Detached reflection cannot be demanded in the presence of an uplifted knife".  SYG laws are a legitimate expansion of the precedent already established by the U.S. Supreme Court in Beard v. United States.  There is no duty to retreat when the conditions for a self-defense claim are met.

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