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Why the New York Times Can't Prepare You For the Bar Exam (or your CrimLaw Final)

Compare and contrast this New York Times editorial on "castle doctrine" laws with this fisking. As those who just took the New York bar will recall, New York requires someone in fear of their life to make reasonable efforts to retreat before using deadly force in self-defense, while maintaining a "castle doctrine," wherein there's no requirement to retreat if the defendant can prove they were in reasonable fear of their life or great bodily harm. However, the requirement to retreat is a minority rule.

The primary change in Florida (and some other state's) "stand your ground" laws is a mere presumption. (Though apparently one report to a Florida committee suggests that this presumption is "conclusive," this seems more a counsel against the use of legislative history, if it's not out and out scaremongering.) [1]) The castle doctrine generally required a defendant to prove that they were in fear of their lives. The stand your ground laws grant a (almost certainly rebuttable) presumption to homeowners that, if a burglar or other intruder breaks into their house, they were probably in fear of their lives, and that someone breaking into a home is willing to use violence. For most of us living in homes, particularly those of us who have lived in bad neighborhoods, this isn't much of an intuitive stretch.

Liptak deals with this change wholly unpersuasively: "[Homeowners] no longer need to prove that they feared for their safety, only that the person they killed intruded unlawfully and forcefully." What he leaves out, of course, is the fact that a homeowner who did not fear for their safety can still be convicted: the state merely has to prove this as part of its case.

Once you get out of the castle doctrine business, Liptak glosses over the fact that retreat statutes were a minority jurisdiction rule in any event. In other words, Florida (and similar states) are becoming a bit more like everywhere else where the sky hasn't fallen. So far as the presumption goes, it's really not all that frightening. Is it really so worrisome that a homeowner who will almost certainly be found to be neither guilty or liable is spared the expense of preparing a defense?

UPDATE: Some of the cases used as sob stories for why this law is so horrible don't really push my buttons. Take, for instance, the case of 23-year-old prostitute Jacqueline Galas, who won't be facing a murder charge. Even according to the St. Petersburg Times (in an article not at all sympathetic to Ms. Galas) describes the situation as follows:

Galas, a 23-year-old with a known history of prostitution, said Labiento was a frequent client. She told authorities that on June 11, at his home on Christina Lane, he pointed a .357 at her and threatened to kill her.

She managed to calm him down, and he put the gun on the kitchen table. When the phone rang, he walked to pick it up.

Galas picked up the gun.

When Labiento approached her, she fired the fatal shot.

"She didn't know if he had another gun," Halkitis said, "because she always saw him with two guns."

If the new law creates an additional zone of risk for Johns who invite hookers into their home and threaten them with handguns, well, so what? I think it's safe to say that this risk is easily avoided by the common sense advice that pointing a gun at someone is generally not good for one's health.

From Ms. Galas's point of view, she had a decision to make: risk running from the home, knowing that a suicidal man might take pot shots at her as she escaped to the car, or kill a man advancing on her as she's holding a gun. A law requiring her to take the risk seems a bit harsh.

When I lived in England, I remember being surprised by the requirements to retreat in British law. On the other hand, I also recall that at my college's introductory public safety lecture (given by a female member of the Thames Valley Police), the response given to a gentleman who asked whether he would be liable for injuries to a mugger if (the questioner being a rather big guy well trained in judo, and hence not a likely victim anyway) the villain was injured. She replied, "The law says you probably should run if you think you can do so. On the other hand, I'd remind you of the old saying that 'It's better to be tried by twelve than carried by six.' So don't give that requirement too much weight."

[1]: The concern by Anthony Sebok that the statutory presumption might be conclusive flies in the face of a lot of good Florida constitutional law, at least in civil cases. See, e.g. Public Health Trust v. Valcin, 507 So. 2d 596, 599 (Fla. 1987) ("[A conclusive presumption] violates due process in its failure to provide the adverse party any opportunity to rebut the presumption of negligence"); Straughn v. K & K Land Management, Inc., 326 So. 2d 421, 424 (Fla. 1976) ("The test for the constitutionality of statutory presumptions is twofold. First, there must be a rational connection between the fact proved and the ultimate fact presumed. . . . Second, there must be a right to rebut in a fair manner.") So while the report to which Sebok refers (here) does describe the presumption as "conclusive," it gives no reason for assuming this to be the case, the Florida courts don't make presumptions conclusive by default, and such a presumption seems to be on shaky due process ground.

Once you abandon the idea of a conclusive presumption, Sebok's fears become a bit sillier:

So let's go back to Lisa and Bob. Under the old law, Lisa would have had to prove not only that Bob was in her home, but also that she was afraid for her life (or the lives of others in the house). In reality, that was often easy to do -- usually juries would take the word of a living homeowner over a dead burglar (even if the burglar was unarmed). But now Lisa, in theory, has a free hand to shoot even a plainly unarmed burglar as to whom he or she, in fact, felt no fear at all.

No. Presuming we weigh actual Florida caselaw over some random legislative report, Lisa doesn't have a free hand to shoot anybody. However, the state will have to prove that the burglar was plainly unarmed and that Lisa had no reasonable fear for her life. (Or at the very least, a civil plaintiff will have to do so.) This is difficult to do, and as Sebok notes, juries give homeowners a wide latitude anyway. Hence, the actual effect of the law may be too spare homeowners the expense of a trial, rather than to alter anyone's rights.


I was told that under UK law you can defend yourself with 'reasonable force' provided you fear for your safety. This should be taken to mean First, try to escape. If you can't then defend yourself by any available means until you can. What gets you in trouble - more or less - is 'kicking someone when they're down'. As soon as you are no longer in danger causing an attacker any further injuries is going to see you in court.
So, let's say a girl scout knocks at your door. When you refuse to buy her cookies, she becomes angry and pushes you out of the way so that she can enter your home and steal a few dollars. (She's a strong scout.) It would seem under this Florida law, a presumption exists that the homeowner fears death or serious bodily injury, and therefore need not prove that he felt in danger of death or serious bodily injury before killing the intruder. Of course the state can prove this by rebutting the presumption, and the defendant can still be found guilty, but the girl scout will still be dead. My point is that if the burden was on defendant to prove that he reasonably feared for his life, and this was known to Florida residents, the mind-set of those in a similar situation might be different, and some of these killings might be prevented. I'm focusing here on the dead victim rather than the eventual outcome of the case.
Sean: Your example will be relevant in a world in which Floridians are beset by a horde of super-strong girl scouts hopped up on macaroons. Otherwise, one of the key points of presumptions is that they actually fit the real world: a rebuttable presumption is merely a method of assuming a fact which is likely to be true in common circumstances. This does two things: it discourages one side (in this case prosecutors and plaintiffs) from bringing a case because they can "roll the dice" and hope, and at the same time keeps cases that shouldn't be there out of court. I know we lawyers like to forget this, but every estate of a dead burglar that sues a homeowner results in fees that (while filling our pockets) subjects the homeowner to additional costs. Of course, your girl scout example is a bit confusing in any event. Your "strong scout" pushed me out of the way in order to get a few bucks, but at the same time I should not fear great bodily injury from her? Why not? After all, here's a girl scout who has come into my home for reasons I don't know--real life not being a hypothetical--and has managed to somehow shove me aside in my own front door. Am I simply telepathic in knowing that all she's going to to is take a few bucks? I'll admit, you're right. The rule does put deranged Brownies exposed to gamma radiation in such a way that they turn into the Incredible Bulk when their sugary goodness goes unbought at risk. But dammit, that's a risk I'm willing to take.

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