Stand Your Ground is in the news again because of course it's in the news again and will be for as long as the law exists

The man who shot the other man Monday at the movies.

PCSO

The man who shot the other man Monday at the movies.

14

January

When Stand Your Ground comes up, I always think about Max Wesley Horn, who shot and killed a man at a street festival. He got off. That's a ways back. I was covering courts in Pasco. Since then, due to the murder of Trayvon Martin, the Tampa Bay Times has done the best work about SYG, and do read it all if you live in Florida, or even if you don't, starting with how its seed was a lie. Now this latest head-shaker out of a Wesley Chapel matinee of Lone Survivor. Read the law. Read it again. Read the language.

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.

Tell me why the one man who shot the other man because of texting and popcorn won't get off.

The Times' Ben Montgomery has written a ton about this. I asked him for his thoughts. Here's what he sent:

There are so many uncertainties, but here are some things that immediately come to mind:

There are four tiers, if you will, where the state's self defense law -- "Stand Your Ground" -- could come into play. The first has already happened. Police must make an initial judgment on whether to arrest. There was no delay to speak of, so we can assume that the initial facts of the case, based on police interviews, suggest that the evidence points to a lack of justifiable homicide as a defense. The phase varies from jurisdiction to jurisdiction, and depends on a mess of early information. You'll recall that police didn't arrest George Zimmerman for 22 days after he shot Trayvon Martin. That's because there were few eye witnesses with varying accounts of what they saw and when they saw it. That doesn't seem to be the case here. Some 25 people were in the room, so it'll be interesting to see what they tell police.

In any event, police made a decision quickly.

The second judgment will come as the state attorney weighs whether to bring formal charges. They'll scrutinize all the evidence and witness statements and weigh it against that statute you mention above. The tricky thing, and one of critics' key problems with the law, is that that requires considering a man's state of mind. Did he reasonably believe he had to pull the trigger to prevent death or great bodily harm to himself or his wife.

Let's say the state attorney feels like a case can be made that the shooter had no reason to be in fear for his life, and that the victim wasn’t committing a forcible felony, and files formal charges. The defendant at that point, assuming he pleads not guilty, can request a hearing and ask a judge to grant him immunity from prosecution. That's the third tier, so to speak, where SYG could come into play. We've seen these hearings go both ways. Some judges toss out cases (Greyston Garcia, Charles Podany) and some send them to trial (Trevor Dooley). Zimmerman's defense, if you recall, chose not to go this route and instead pushed the case to a jury trial. Some defense lawyers don't want to show all their cards to the state in such a hearing if they believe a jury will acquit.

So, if the case moves to trial, expect that statute to be included in jury instructions. And expect lawyers to argue every aspect of Stand Your Ground, especially these three questions:

1. Was the shooter in a place he had a legal right to be?

2. Was the shooter engaged in unlawful activity?

3. Did the shooter reasonably believe pulling the trigger was necessary to … a) prevent death or great bodily harm to himself or another or b) prevent the commission of a forcible felony? That, in Florida, is defined like this: treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

That last line is important: any other felony which involves the use or threat of physical force or violence. Use or threat.

Enter popcorn bag. That sounds corny? Zimmerman's defense argued that a chunk of sidewalk was a deadly weapon, and that Trayvon Martin was using that deadly weapon.

Enter, also, dialogue.

What was the exchange between the two men and did the victim use threatening language? I'm gonna kick your ass? I'm gonna kill you? A judge dismissed charges against a man who got into a shootout on a crowded Sarasota street because a witness testified that his rival had claimed he had "fire in his pocket" and threatened the shooter. Police found no weapon at the scene, but that didn't matter. What mattered was that the shooter believed his enemy had a weapon and was ready to use it. This suggests that there need not be a weapon, only the reasonable threat of one in the mind of the shooter.

We can only guess what those 25 witnesses heard, but threatening language could sway the jury to judge the state of mind of the shooter. Did he "reasonably believe" he had to use force to prevent the victim from harming him or his wife based on what the victim was saying?

Enter the atmosphere. Was it dark? Did the victim have something in his hands? What was he doing with his hands? Could the shooter even see his hands? How large was the victim compared to the shooter?

If the shooter is charged and pleads not guilty, this will be another test of a law that has critics across the country, a law of which Floridians, polls show, overwhelmingly approve.

And it will come down to the state of mind of the lone survivor.

[Last modified: Tuesday, January 14, 2014 5:35pm]

    

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