Florida's 'no duty to retreat' law - Page 2 - Tilted Forum Project Discussion Community

flstf · 10-06-2005, 02:42 PM

If there are no other extenuating circumstances then on the surface it looks like the manager was wrong to pursue the guy outside. I can't imagine why he would though unless he felt it was a him or me situation, and he had a better chance of defending himself outside with less chance of anyone else getting hurt. I guess he could/should have locked the doors and called 911.

cj2112 · 10-06-2005, 02:57 PM

Quote:

Originally Posted by raveneye

ok, any folks who are against the duty to retreat want to weigh in here? I'll wait awhile before I post the full citation.

I am against the duty to retreat, but that doesn't mean I'm for the right to pursue either

analog · 10-07-2005, 01:18 AM

As usual, 8 other things besides the real issue are being brought into the context for no reason.

The issue is not if you can kill someone. The issue is not if "duty to retreat" is the opposite of "pursuing".

Before: If someone attacked you, you were required to extricate yourself from the situation and if, and ONLY if, you could not remove yourself from the altercation, could you then MATCH force to defend yourself. Even if you kicked the person in the shins in defense, you would have to have proved you could not get away from the attacker to justify that simple battery.

When it came down to it, you could only ever match force, this new law does nothing to change that. All it does is says you no longer HAVE TO try and run before defending yourself. So, now if someone kicks you in the shins, you can kick right back to defend yourself.

Everyone immediately wants to go to guns on this topic, but it has fuck all to do with guns, it has only to do with being required to try and run from the attack, vs. now you can defend yourself without first having to try to get away. You can now stand your ground if attacked. Simple, not complicated.

"You shall not stir one foot to seek a foe" - Shakespeare, Romeo and Juliet... if the attacker attempts to exit, any further actions to pursue them on your part are now attack, and you will be held responsible for your actions.

I still have NO fucking clue why the hell london and chicago got pulled into this whole bullshit mess of a thread. Totally irrelevant.

There's just no need to complicate matters, and that's all that seems to be happening in this thread.

raveneye · 10-07-2005, 04:30 AM

Here's the full citation:

Quote:

The STATE of Florida, Appellant, v. James SMITH, Appellee

No. 78-2072

Court of Appeal of Florida, Third District

376 So. 2d 261; 1979 Fla. App. LEXIS 16016

October 9, 1979

SUBSEQUENT HISTORY: [**1]

Rehearing Denied November 26, 1979.

COUNSEL: Janet Reno, State's Atty. and David Waksman, Asst. State's Atty., for appellant.

Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender and Robin Green (Legal Intern), for appellee.

JUDGES: Before HENDRY and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.

OPINIONBY: PER CURIAM

OPINION: [*261]

The State of Florida takes this appeal from an order granting the defendant's sworn motion to dismiss an information charging him with second degree murder to which the state demurred.

The defendant was working in a cafe as cashier/manager. About 3:00 A.M. an intoxicated man came into the cafe and caused a disturbance, whereupon defendant asked him to leave. The deceased spoke up in the man's behalf and was also asked to leave. When defendant attempted to grab the man to eject him, the deceased pushed defendant into the juke box and they began struggling. Upon being separated by patrons, the deceased said to defendant, "You just wait, . . . I'm going to kill you," and then ran out the door of the cafe to his truck which was parked about fifteen feet away. Defendant grabbed a gun from behind the counter and ran outside [**2] the cafe. One witness heard defendant asked the deceased if he had a gun but heard no response. Defendant stated that when he got to the truck, the deceased was going into his truck and that he believed he was going for a gun. At this point, defendant opened fire. A metallic wrench was found outside the cafe next to where the truck was [*262] parked. The deceased drove his truck to a clinic, and while being assisted said, "Man, you know he shot me, but I'm wrong, you know, I'm wrong."

As a general rule, where, as here, the material facts are undisputed, the trial court in considering a motion to dismiss must determine whether the undisputed facts raise a jury question, in much the same manner as a judge evaluates a motion for acquittal made at trial. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). Thus, where, in the opinion of the trial judge the undisputed material facts do not legally constitute the crime charged, or affirmatively establish a valid defense, a motion to dismiss should be granted. Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974).

The state failed to specifically deny by traverse under oath the allegations that defendant believed the deceased was [**3] going for a gun, and this fact is considered admitted by the state. State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). As manager of the cafe, defendant was not obligated to retreat from his place of business. See Annot., 41 A.L.R.3d 584 (1972). Self defense is a valid defense.

The record in this case clearly demonstrates that the appearance of danger was real to the defendant and that he believed the use of deadly force was necessary to protect himself. It is apparent that no legally sufficient evidence could have been submitted on which a jury could legally find a verdict of guilty. McKnight v. State, 341 So.2d 261 (Fla. 3d DCA 1977). Therefore, the court properly entered its order granting the motion to dismiss.

Affirmed.

raveneye · 10-07-2005, 04:34 AM

In Florida, there are two situations where there was no duty to retreat even before the new law: in your home, and in your place of business.

SO if we want to understand what the effect of the new law will likely be (everywhere, eg in public places), we can look at case histories of what people were allowed to do in their homes and in their places of business.

That's why I posted that case, and there are several others like it.

cj2112 · 10-07-2005, 06:19 AM

If you read why that decision was made, it had nothing to do with not having the duty to retreat, it had to do with incompetence on the part of the states attorney. The state has the burden of proof, and they dropped the ball.

Quote:

The state failed to specifically deny by traverse under oath the allegations that defendant believed the deceased was [**3] going for a gun, and this fact is considered admitted by the state. State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). As manager of the cafe, defendant was not obligated to retreat from his place of business. See Annot., 41 A.L.R.3d 584 (1972). Self defense is a valid defense.

The fact that the defendant wasn't required to retreat is not what got him a not guilty verdict...it's the fact that the state poorly prosecuted the case by not even questioning what the defendant was thinking at the time, or whether that thought process was reasonable in the eyes of the law.

flstf · 10-07-2005, 07:26 AM

Quote:

Originally Posted by cj2112

If you read why that decision was made, it had nothing to do with not having the duty to retreat, it had to do with incompetence on the part of the states attorney. The state has the burden of proof, and they dropped the ball.
The fact that the defendant wasn't required to retreat is not what got him a not guilty verdict...it's the fact that the state poorly prosecuted the case by not even questioning what the defendant was thinking at the time, or whether that thought process was reasonable in the eyes of the law.

Maybe the state prosecution was just wrong to charge the manager in the first place and he really did think that the deceased was going to get a gun and kill him?
That's why:

Quote:

The state failed to specifically deny by traverse under oath the allegations that defendant believed the deceased was [**3] going for a gun, and this fact is considered admitted by the state.

joshbaumgartner · 10-07-2005, 08:57 AM

To go back to what Analog said, this case doesn't appear to have relevance to the new law, as the 'duty to retreat' did not factor in the judgement.

If the new law was truly necessary to protect the rights of Floridians to life and liberty, then this need would be demonstrated through either one or both of the following:
1) Significant numbers of citizens being convicted of manslaughter in cases where they were rightly defending themselves or others.
2) Significant cases of citizens being harmed by assailants while attempting to flee the attack instead of responding with force, in order to perform within the law.

Unless these can be demonstrated, the need for the new law remains purely hypothetical, and thus we should be extremely wary of enacting such a law without fully contemplating potential negatives.

Josh

raveneye · 10-07-2005, 09:03 AM

Quote:

The state failed to specifically deny by traverse under oath the allegations that defendant believed the deceased was [**3] going for a gun, and this fact is considered admitted by the state. State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). As manager of the cafe, defendant was not obligated to retreat from his place of business. See Annot., 41 A.L.R.3d 584 (1972). Self defense is a valid defense.

The state admitted that the manager thought the guy was going for a gun. That, plus the fact that he had no duty to retreat, was enough to exonerate him.

raveneye · 10-07-2005, 09:17 AM

Quote:

To go back to what Analog said, this case doesn't appear to have relevance to the new law, as the 'duty to retreat' did not factor in the judgement.

If you're talking about the case I posted, see the yellow highlight. Because it was the manager's place of business, he was within his rights to move anywhere within that property, and use force to counter the threat of force.

The relevance to the new law, is that principle now expands to apply everywhere, not just within one's home or place of business.

So what the manager did (assuming that he did so because he reasonably thought his assailant was going for a gun) presumably can now be done legally by anybody anywhere in Florida.

joshbaumgartner · 10-07-2005, 09:50 AM

Quote:

Originally Posted by raveneye

If you're talking about the case I posted, see the yellow highlight. Because it was the manager's place of business, he was within his rights to move anywhere within that property, and use force to counter the threat of force.

The relevance to the new law, is that principle now expands to apply everywhere, not just within one's home or place of business.

So what the manager did (assuming that he did so because he reasonably thought his assailant was going for a gun) presumably can now be done legally by anybody anywhere in Florida.

I see your point, and you are right to point this out. This points out the hazard of the law. If we are correct in our assessment, it would now be okay for this to be done by, say, a customer, who pursues a guy out of a bar and kills him in the parking lot after an altercation.

To introduce such a hazard would be understandable if it were correcting a demonstrable failure in the law, but as I cited before, until that failure is demonstrated (and I have yet to see the cases brought forward to do so), it is irresponsible to do so. Introducing a problem to correct a hypothetical one is not generally a basis for good legislation.

flstf · 10-07-2005, 09:54 AM

Quote:

Originally Posted by raveneye

So what the manager did (assuming that he did so because he reasonably thought his assailant was going for a gun) presumably can now be done legally by anybody anywhere in Florida.

That is a good point. Also, I guess now everyone in Florida will be able to defend themselves against someone who threatens to kill them, no matter where they are, if they give you reason to believe they are reaching for a gun to complete their threat.

cj2112 · 10-07-2005, 11:32 AM

Quote:

Originally Posted by raveneye

The state admitted that the manager thought the guy was going for a gun. That, plus the fact that he had no duty to retreat, was enough to exonerate him.

We don't know that from the information given about this case, we only know that the state failed to even address this issue during the case.

smooth · 10-07-2005, 12:05 PM

Quote:

Originally Posted by cj2112

We don't know that from the information given about this case, we only know that the state failed to even address this issue during the case.

How do you conclude that this:

Quote:

As manager of the cafe, defendant was not obligated to retreat from his place of business. See Annot., 41 A.L.R.3d 584 (1972). Self defense is a valid defense.

doesn't contradict your position?

Quote:

The fact that the defendant wasn't required to retreat is not what got him a not guilty verdict...

besides, he didn't get a "not guilty" verdict; the case was dismissed.

EDIT: cj, do you know what the legal term "deny under traverse of oath" means? If there wasn't any legal basis for the dispute of the material fact that the defendent thought the assailant was going for a gun, then they can't challenge it or may even stipulate it.

On what basis do you think the state could have denied the defendant's belief as a factual matter?
The only way to dispute his belief about the victim obtaining a gun would have been to have witnesses saying that he didn't really believe it, or a confession. Short of either of those, there wasn't much for the prosecutor to do other than state as opinion that the defendant wasn't really in fear of his life. I'm not sure where you got the notion that the state was incompetent.

10-06-2005, 02:42 PM	#41 (permalink)
flstf Easy Rider Location: Moscow on the Ohio	If there are no other extenuating circumstances then on the surface it looks like the manager was wrong to pursue the guy outside. I can't imagine why he would though unless he felt it was a him or me situation, and he had a better chance of defending himself outside with less chance of anyone else getting hurt. I guess he could/should have locked the doors and called 911. Last edited by flstf; 10-06-2005 at 05:09 PM.. Reason: changed persue to pursue

10-07-2005, 01:18 AM	#43 (permalink)
analog Banned	As usual, 8 other things besides the real issue are being brought into the context for no reason. The issue is not if you can kill someone. The issue is not if "duty to retreat" is the opposite of "pursuing". Before: If someone attacked you, you were required to extricate yourself from the situation and if, and ONLY if, you could not remove yourself from the altercation, could you then MATCH force to defend yourself. Even if you kicked the person in the shins in defense, you would have to have proved you could not get away from the attacker to justify that simple battery. When it came down to it, you could only ever match force, this new law does nothing to change that. All it does is says you no longer HAVE TO try and run before defending yourself. So, now if someone kicks you in the shins, you can kick right back to defend yourself. Everyone immediately wants to go to guns on this topic, but it has fuck all to do with guns, it has only to do with being required to try and run from the attack, vs. now you can defend yourself without first having to try to get away. You can now stand your ground if attacked. Simple, not complicated. "You shall not stir one foot to seek a foe" - Shakespeare, Romeo and Juliet... if the attacker attempts to exit, any further actions to pursue them on your part are now attack, and you will be held responsible for your actions. I still have NO fucking clue why the hell london and chicago got pulled into this whole bullshit mess of a thread. Totally irrelevant. There's just no need to complicate matters, and that's all that seems to be happening in this thread.

10-07-2005, 04:34 AM	#45 (permalink)
raveneye Born Against	In Florida, there are two situations where there was no duty to retreat even before the new law: in your home, and in your place of business. SO if we want to understand what the effect of the new law will likely be (everywhere, eg in public places), we can look at case histories of what people were allowed to do in their homes and in their places of business. That's why I posted that case, and there are several others like it.

10-07-2005, 08:57 AM	#48 (permalink)
joshbaumgartner Insane	To go back to what Analog said, this case doesn't appear to have relevance to the new law, as the 'duty to retreat' did not factor in the judgement. If the new law was truly necessary to protect the rights of Floridians to life and liberty, then this need would be demonstrated through either one or both of the following: 1) Significant numbers of citizens being convicted of manslaughter in cases where they were rightly defending themselves or others. 2) Significant cases of citizens being harmed by assailants while attempting to flee the attack instead of responding with force, in order to perform within the law. Unless these can be demonstrated, the need for the new law remains purely hypothetical, and thus we should be extremely wary of enacting such a law without fully contemplating potential negatives. Josh