AndyH wrote: Sat Jul 28, 2018 1:12 pm
Evo1 wrote: Sat Jul 28, 2018 12:08 am
AndyH wrote: Fri Jul 27, 2018 11:19 pm
Evo1 - Branca's a practicing attorney that specializes in self-defense. He's got more than 30 years experience in the trenches, and teaches and writes about self-defense law in all 50 states. I'm going to give his view plenty of credibility until someone with a whole lot more experience comes along.
I'm not arguing his credentials. But he completely disregarded the primary requirement under Florida law, which is necessity. He spends a lot of time trying to make a case (using loaded hyperbole) that a belief in an imminent threat is reasonable. First, if we take away exaggerated statements like "hovering menacingly over him," which he wasn't (moving back and turning away is not "hovering", nor is it "menacing", and being a good 6-8 feet away isn't "over him"), then I disagree that belief in imminence is reasonable. And he admits that it's debatable, even with his hyperbole. He's pitching it the way he'd defend it, but the prosecution, if its any good, would rebut him just as I am.
But notice that Florida law doesn't require a reasonable belief that a threat is imminent. That's a lawyer's distraction. The law requires a reasonable belief that lethal force is necessary; not optional, not acceptable, not expedient, but necessary. There has to be a reasonable belief that you have no other choice (except to try to flee, which SYG takes care of). Here, again, is the relevant text of the Florida law:
http://www.leg.state.fl.us/statutes/ind ... 6.012.html
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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.
If the circumstances don't support a reasonable belief that you had no choice but to use lethal force, then it doesn't matter if you believe there is an imminent threat or not, so all that time he spends trying to make a case for such a belief is irrelevant. It is, again, a lawyer's distraction. He's previewing how he would defend the case, but in doing so he's intentionally ignoring the actual wording of the law, and it's primary requirement, because that would damage his hypothetical defense. He talks about proportionality, which is certainly often relevant in self-defense cases, but which, like fear, is not at all a part of Florida law. He talks about avoidance, which he admits is irrelevant in this case (so it actually isn't an SYG case at all, just like Travon Martin). He talks about innocence, and, from what we see, he's correct, McGlockton was the initial aggressor, although I'd argue that he was trying to disengage when he was shot. And he discusses reasonableness, which, as he says, is really just a combination of the other four elements he talks about. But Florida law either doesn't require these four elements, or makes them subordinate to the one element he never addresses, which is necessity. It's clearly and explicitly the primary requirement in the above text. All the prosecutor has to do is prove beyond a reasonable doubt that, at the moment he pulled the trigger, it wasn't reasonable to believe that killing McGlockton was absolutely necessary to keep him from seriously injuring Drejka. If they can do that, they convict, and everything else that Branca discusses becomes irrelevant.
I would agree that when he pulled his gun, it was reasonable for him to believe that threat of lethal force was necessary, because McGlockton was still moving toward him and was close. But McGlockton then stepped back and started to turn away before Drejka fired, so that when he pulled the trigger, the actual use lethal force wasn't necessary, and it wasn't reasonable to believe that it was. Watch the video and put yourself in Drejka's place at the moment he pulled the trigger, then ask yourself if you would have believed, at that moment, that you had no other choice but to shoot. That you couldn't, for example, keep pointing your gun at him and order him back while you gained your feet. Unless the answer is 'yes', then I think Branca's wrong, and it won't be that hard at all to prove it wasn't legal self defense beyond a reasonable doubt.
I agree that the pieces weren't written very 'clinically'. I do, however, understand why he used 'hovering'. Put yourself on the ground. The guy that just knocked you on your ass is younger, stronger, and taller, and is looking down on your from 3 feet beyond the reach of his arm. He can take a single step and have hands on you again. How do you feel? (To get closer to beating a dead horse, do you grok the significance of the Tueller drill? 21 feet is 1.5 seconds - that's close enough for an attacker to have a knife in your chest just as you draw and get your finger on the trigger. 21 feet is 'mutually assured destruction' - anything closer than that is CQB where the aggressor can kill you with your own gun.)
http://www.theppsc.org/Staff_Views/Tuel ... .Close.htm
I frankly doubt that Branca disregarded a primary requirement under Florida law. I also doubt that the overall structure of the Florida process is significantly different from the rest of the country. I recall Ohio being singled out for having some interesting kinks, but not Florida. Maybe I'm wrong about that. (I've just spent about 20 minutes looking for Branca's book. It's in this place somewhere. If I actually put it on a bookshelf as part of some misguided attempt to 'clean' I'll never see it again.
)
If fear isn't part of Florida law, I wonder why it was brought up so many times in the Zimmerman trial?
Necessity/competing harms isn't a precursor to self defense. First, one has to be in a situation where they face death or great bodily harm. Then they have to make the decision to act or not. It's in the 'what do I do?' portion of the process where one decides that breaking the law is the best option. The 'AOC' and five requirements have to be met in order to qualify the first part (Am I in a self-defense situation?) before necessity becomes a factor. Since the story in the media is that the gun was excessive, it makes sense that he'd begin with the first part of the process. (ETA...hmmm...this probably isn't quite accurate. The media stuff is about 'stand your ground' - or at least that's the label they're applying to the entire process. Standing one's ground is also in 'part 2' - after determining that there's a threat. Also... I keep thinking about what I'd do if I found myself planted on the ground. It'll probably take about 1.5 seconds to draw and cover the threat. It would take me longer than that to get back on my feet. That means I'm subject to being 'dead' or 'great bodily harmed' from someone within 21 feet. As much as I'd want to get back on my feet to open up options, I can see why he went straight for the draw - it was his only tactical option.)
I don't think he's pitching it as he'd defend it. I wouldn't expect a skilled attorney to leave any open holes. As he's doing the same sort of 'armchair' thing we are, I give him credit for showing potential holes. He's educating, not litigating, I guess.
I'll buy the first round when we get together after the trial(s) to see how we did.
I would understand "hovering" too, if it weren't for the fact that McGlockton stepped back during Drejka's pause. But give the actual things that happened, "hovering" is inflammatory hyperbole. And the Tueller drill doesn't quite work here since McGlocton wasn't armed, was moving in the opposite direction, and Drejka was on the ground. Plus, Drejka already had his gun pointed at McGlockton ready to fire, so 1.5 seconds was 300% longer than he would have needed to react had McGlockton reversed direction and tried to reinitiate his assault.
Again, read the law. The primary requirement, in plain English, is a requirement for a reasonable belief in the necessity of lethal force. And Branca completely ignored that requirement in his assessment. And you're right, the Florida law isn't that different from the rest of the country. Nowhere is simple fear enough to justify lethal force. That is a straw man created by opponents of the law. In fact, the reason why SYG became a thing is because the ability to retreat is one of the options that make lethal force unnecessary. However, retreat was problematic, because it was difficult, if not impossible, to demonstrate that a victim could know he or she could *safely* retreat, even if it was obvious in hindsight. And yet prosecutors would often try to convict using such hindsight, against which defendants had almost no chance to prove necessity. So SYG was passed specifically to remove 'retreat' from the options that could be required before making a claim of necessity. However, necessity is still the standard, even though the ability to retreat doesn't automatically count against it.
Here are some other laws on lethal force in other SYG states from all around the country (emphasis added):
Missouri: A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony
Georgia: 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
Michigan: Sec. 2. (1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
Nevada: 1. Justifiable homicide is the killing of a human being in necessary self-defense
Pennsylvania: (a) Use of force justifiable for protection of the person.--The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
Utah: (1)(a) A person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person's imminent use of unlawful force.
So a claim of necessity
is the standard in the rest of the country as well, not just a claim of fear. As I said, if Branca's assessment was correct, lethal force would be justified in virtually every fist fight as soon as someone got knocked down, as long as it wasn't the person who threw the first punch. This is why opponents of the law created the straw man argument that all you need is fear, which has unfortunately become a common belief, because it makes SYG into a justification to escalate simple fights to lethal confrontations. But that's not what SYG is, because it doesn't remove the requirement of necessity as they claim.
The reason why fear is often mentioned in cases like the Zimmerman case is because fear or imminent danger is one requirement for a claim of necessity. As the Florida statute says:
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another
You can't claim to believe that lethal force is necessary (which is the only requirement listed) to stop imminent death if you don't also actually believe there is such a threat. So "fear" or belief that there is a threat, is a prerequisite for a claim of necessity, which you have to show in order to claim self-defense. You can't claim necessity if there was no fear, and you can't claim justification for lethal force unless you can make a claim for a belief in necessity.
I also agree that drawing his gun was a good tactical choice, and even justified. At the moment he hit the ground, I think he actually met the standard of the law. He had just been blindsided, was in a very vulnerable position, and had a larger younger assailant standing over him. I would even say that had he drawn and fired as single act, he would have been legally justified, though still a bit of an overreaction, because McGlockton was right over him and still had forward momentum. But instead he drew on McGlockton and then paused long enough to assess the situation, during which time McGlockton stepped back and started turning away. I know Branca doesn't think McGlockton stepped back far enough to remove fear of the threat, and maybe he's right. But it's harder to argue that reacting to a threat of lethal force by retreating doesn't remove a claim that using lethal force is necessary to stop that threat.
I'll take you up on the beer. Second round is on me